GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
AND
ORDER
Representation:
B W Walker SC with G P Segal and D H Hirsch for the appellant (instructed by Maurice
Blackburn Cashman)
S J Gageler SC with J K Kirk for the respondent (instructed by Blake Dawson Waldron)
Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law Reports.
1. CATCHWORDS
2. Harriton v Stephens
Torts Medical negligence Wrongful life Birth of severely disabled child Agreed
for the purposes of separate questions at first instance that the respondent doctor failed
to diagnose the mother's rubella infection during pregnancy Doctor failed to warn the
mother of the risk of serious disability as a consequence of the rubella infection
Whether the appellant child born with disabilities can recover from the doctor.
Duty of care Medical practitioners Whether the doctor owed the child a duty of care
to diagnose rubella and advise the child's mother in relation to the termination of the
pregnancy Foreseeability of risk to the appellant Whether the facts of the case fall
within the established duty of care which medical practitioners owe to foetuses to take
reasonable care to prevent pre-natal injury Vulnerability of the appellant Relevance
of duty of care owed to the appellant's mother.
Public policy Principle of the sanctity of human life Whether life is capable of
constituting a legally cognisable injury Effect on disabled people of awarding
damages for wrongful life Whether it would be appropriate to award damages in
respect of minor defects in circumstances where a child's mother would have terminated
her pregnancy had she been warned of the risk of such defects Whether disabled child
could sue his or her mother for failing to terminate her pregnancy Whether awarding
damages for wrongful life would undermine familial relationships Relevance of
unforeseen advances in genetic science.
1 I agree that the appeal should be dismissed with costs, for the reasons given by
her Honour.
Gummow J
2.
3.
5 The Court is now required to decide whether a child, born with profound
disabilities, whose mother would have elected to terminate her pregnancy had she been
aware that there was a real risk of the child being born with such disabilities, is entitled
to damages where a medical practitioner negligently failed to warn the mother of that
risk. Such actions have been called "wrongful life" actions. This is a value-loaded label.
An alternative, namely, "wrongful suffering", has been suggested. However designated,
such proceedings have received a generally hostile reception from courts in Australia
and elsewhere. Many academic commentators have regarded them as insupportable 4.
Yet others have considered that they are compatible with the established principles of
the tort of negligence5.
4.
8 First, it has been borrowed from another context. The expression was
originally used in the United States of America to describe claims brought by healthy
but "illegitimate" children against their fathers, seeking damages for the disadvantages
caused by reason of their illegitimacy12. Such actions are quite different from "modern"
wrongful life actions because, among other things, the alleged wrong is not in any
meaningful sense the cause of the plaintiff's existence13.
7 Teff, "The Action for 'Wrongful Life' In England and the United States", (1985) 34
International and Comparative Law Quarterly 423 at 425.
8 Kashi, "The Case of the Unwanted Blessing: Wrongful Life", (1977) 31 University of
Miami Law Review 1409 at 1432.
9 Harriton v Stephens [2002] NSWSC 461 at [8].
10 Lininger v Eisenbaum 764 P 2d 1202 at 1214 (1988). See also Viccaro v Milunsky
551 NE 2d 8 at 9 n 3 (1990); Hester v Dwivedi 733 NE 2d 1161 at 1163-1164, 1169
(2000).
11 Contra Berman v Allan 404 A 2d 8 at 11 (1979).
12 Zepeda v Zepeda 190 NE 2d 849 at 858 (1963).
13 See Tedeschi, "On Tort Liability for 'Wrongful Life'", (1966) 1 Israel Law Review
513 at 533.
14 Hester 733 NE 2d 1161 at 1169 (2000); Viccaro 551 NE 2d 8 at 9 n 3 (1990).
15 Cane, "Injuries to Unborn Children", (1977) 51 Australian Law Journal 704 at 719.
16 See Waller v James [2006] HCA 16 at [28].
17 Although see below these reasons at [127]-[133].
Kirby J
5.
one description there is a danger that important factual distinctions will be overlooked
or obscured18.
18 Curlender v Bio-Science Laboratories 165 Cal Rptr 477 at 481, 486 (1980).
19 See Harriton (by her tutor Harriton) v Stephens (2004) 59 NSWLR 694 at 743
[315]-[319].
20 Actions for wrongful birth are sometimes distinguished from so-called actions for
wrongful conception. The difference between these labels appears to turn on the fact
that wrongful conception consists of negligence resulting in conception while wrongful
birth, according to those who draw this distinction, involves negligence that deprives a
pregnant woman of the opportunity to undergo an abortion or negligence that fails to
effect an abortion.
21 Harriton (2004) 59 NSWLR 694 at 706 [69]; Lininger 764 P 2d 1202 at 1214
(1988).
22 See Wilson v The Queen (1992) 174 CLR 313 at 341.
23 Harriton (2004) 59 NSWLR 694 at 706-707 [69]; Teff, "The Action for 'Wrongful
Life' in England and the United States", (1985) 34 International and Comparative Law
Quarterly 423 at 427-428; Kashi, "The Case of the Unwanted Blessing: Wrongful
Life", (1977) 31 University of Miami Law Review 1409 at 1431-1432.
24 Berman 404 A 2d 8 at 20 (1979); In re A (Children) (Conjoined Twins: Surgical
Separation) [2001] Fam 147 at 155.
Kirby J
6.
legal literature. To adopt a more fitting description would risk confusion 25. However,
the appeal should be approached with full awareness of the shortcomings in the label
"wrongful life". It must be decided by reference to legal analysis, not emotive labels or
slogans.
14 This appeal was heard concurrently with two other appeals concerning
the permissibility of wrongful life actions26. The facts were agreed between the parties
for the purposes of determining whether the appellant had a cause of action against the
respondent and, if so, what heads of damages were available in respect of it27.
"Rubella 30
If no recent contact or rubella-like rash, further contact with this virus is unlikely
to produce congenital abnormalities."
17 Mrs Harriton consulted the respondent on 22 August 1980. She supplied
him with substantially the same history as she had given to his father. The respondent
was in possession of the pathology report. He advised her that she was pregnant but
assured her that her symptoms were not caused by the rubella virus.
7.
had Mrs Harriton received competent medical advice, she would have terminated the
pregnancy.
8.
23 First, he found that whilst a health care provider owes a duty of care to
an unborn child to take reasonable care to avoid causing that child physical injuries in
utero, that duty did not include an obligation to give advice to the mother of an unborn
child that could deprive that unborn child of the opportunity of life36.
24 Secondly, Studdert J held that there was no breach of the accepted duty
of care that health care providers owe to unborn children to guard against acts or
omissions which might cause physical injury because the respondent did not do
anything which caused her mother to contract the rubella virus37. Nor was the
respondent negligent in failing to take prophylactic measures either to ameliorate the
risk of the appellant's being infected with rubella or to reduce the severity of the
appellant's disabilities. It was accepted by the appellant that no such measures exist38.
9.
29 In Ipp JA's view, the main difficulty with the appellant's action was that
damages could not be quantified because of the impossibility of comparing existence
with non-existence49. Ipp JA would also have rejected the appellant's action on the basis
of the absence of a duty of care50 and causation51. He cited a number of policy
arguments militating against recognition of the interest asserted by the appellant 52. It is
convenient to address these policy arguments later in these reasons53.
31 Mason P also rejected the proposition that the appellant's action should
be disallowed by reason of the impossibility of determining the damage she suffered. He
did so for several reasons56. These included that the law values other intangible losses
and explicitly or implicitly weighs existence against non-existence in other legal
contexts.
45 Harriton (2004) 59 NSWLR 694. The Court of Appeal heard the appeal in this
matter together with appeals against the decision in Waller [2002] NSWSC 462.
46 Harriton (2004) 59 NSWLR 694 at 701-702 [25]-[33].
47 Harriton (2004) 59 NSWLR 694 at 699-701 [12]-[23].
48 Harriton (2004) 59 NSWLR 694 at 704 [45]-[46].
49 Harriton (2004) 59 NSWLR 694 at 737-738 [265]-[271].
50 Harriton (2004) 59 NSWLR 694 at 748 [351].
51 Harriton (2004) 59 NSWLR 694 at 748-749 [353]-[363].
52 Harriton (2004) 59 NSWLR 694 at 744-748 [321]-[351].
53 See below these reasons at [110]-[152].
54 Harriton (2004) 59 NSWLR 694 at 717 [131], 719 [144].
55 Harriton (2004) 59 NSWLR 694 at 718 [136]-[137].
56 Harriton (2004) 59 NSWLR 694 at 721-722 [157]-[162].
Kirby J
10.
35 Notwithstanding these difficulties, this Court, like the courts below, must
decide the contest applying established law to the abbreviated facts. This process yields
an answer favourable to the appellant despite the unfavourable forensic procedure she
adopted.
36 The breach issue: Two issues can be exposed which do not present any
real problem for this Court. The first is the breach element of the tort of negligence. As
57 See above these reasons at [22].
58 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 561-562
[123]; Hester 733 NE 2d 1161 at 1168 (2000).
59 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous
Affairs (2004) 219 CLR 486 at 518 [91].
60 Woolcock (2004) 216 CLR 515 at 565-566 [138] applying E (A Minor) v Dorset
County Council [1995] 2 AC 633 at 694 per Sir Thomas Bingham MR.
Kirby J
11.
already mentioned, the parties agreed that, if the respondent owed the appellant a
relevant duty of care, the respondent had breached that duty61.
39 In the present case, the only way in which the appellant's suffering could
have been prevented was by terminating the pregnancy. The respondent's negligence
deprived the appellant's parents of the opportunity to act on that preventative measure.
As such, the respondent was a cause of the appellant's damage.
40 Once the breach and causation issues are put aside, three main issues
remain for determination of the legal liability of the respondent to the appellant. They
are:
(1) The duty of care issue: Did the respondent owe the appellant a relevant
duty of care? Does this case fall within the duty a health care provider
owes to take reasonable care to avoid causing pre-natal injury to a
foetus?
12.
(2) The damage issue: Is the appellant's damage capable of being quantified?
Do the suggested difficulties of quantification arise in relation to all of
the heads of damages pleaded by the appellant?
(3) The policy issues: Assuming that a relevant duty of care was owed to the
appellant and that her damage is capable of quantification, are there any
policy considerations that should preclude this Court from upholding the
claim? Are there countervailing considerations that support recognition
of the appellant's cause of action?
41 Before examining these questions it is helpful to consider Australian and
overseas decisions on wrongful life actions.
42 Other than the present case, and the appeals in Waller v James65, heard at
the same time, there have only been three reported wrongful life actions brought in
Australia. In each case, the plaintiff failed.
43 The first was Bannerman v Mills66. The plaintiff there was born with
severe defects as a result of contracting rubella from her mother while a foetus. The
facts of the case are not entirely clear from the report. However, it appears that the
mother, while pregnant with the plaintiff, had consulted the defendants about her
infection. The plaintiff alleged that the defendants were negligent in failing to advise
her, among other things, to terminate her pregnancy. The defendants brought a motion
for summary dismissal of the proceedings on the basis that no reasonable cause of
action was disclosed. A Master of the Supreme Court of New South Wales, after
surveying decisions in the United Kingdom and the United States, dismissed the
plaintiff's action on the basis that it was unarguable as a matter of law.
44 The next case was Hayne v Nyst67. That was a proceeding commenced by
a mother in her own right and on behalf of the child. The mother had given birth to a
child who had contracted rubella in utero. An application for leave to bring the
proceedings outside the applicable limitation period was ultimately discontinued with
the apparent acquiescence of counsel for both sides. However, Williams J commented
that, in any event, he did not consider that the child had a viable cause of action.
45 The third case was Edwards v Blomeley68. The plaintiff there was the
seventh child born to her parents. Before she was conceived, her father, Mr Edwards,
had approached the defendant, a medical practitioner, for a vasectomy. That operation
failed. The parties agreed that the defendant had not only negligently performed the
vasectomy but, contrary to indications from sperm count tests, subsequently advised Mr
Edwards that the procedure had been successful. Acting in reliance on this advice, Mr
Edwards engaged in unprotected sexual intercourse with his wife. This resulted in the
65 (2004) 59 NSWLR 694.
66 (1991) Aust Torts Reports 81-079.
67 Unreported, Supreme Court of Queensland, 17 October 1995.
68 [2002] NSWSC 460.
Kirby J
13.
plaintiff's conception. At birth it was found that the child suffered from cri du chat
syndrome. This is a rare chromosomal disorder that causes severe intellectual and
physical disabilities.
46 In the Supreme Court of New South Wales, Studdert J rejected the child's
action for want of a relevant duty of care. His Honour stated69 "I cannot accept that the
defendant owed to the ... plaintiff a duty to prevent her conception, or to give to her
parents advice such as would have prevented her conception". Studdert J also rejected
the action on the basis of causation70 and the impossibility of assessing the damage that
the plaintiff suffered71. Finally, his Honour considered that public policy militated
against recognition of the plaintiff's action. He found that wrongful life actions, among
other things, erode the sanctity of human life and devalue members of society living
with disabilities72. The parallels with Studdert J's reasoning in the present case are
obvious73.
49 The defendants brought a motion to strike out the daughter's claim on the
ground that it failed to disclose a reasonably arguable cause of action. That motion was
granted by a Master of the High Court. However, it was overturned by Lawton J on
appeal. In the Court of Appeal, Stephenson and Ackner LJJ, in separate reasons,
restored the orders of the Master. In dissent, Griffiths LJ would have upheld the orders
made by Lawton J on the basis that the issue to be determined was not so straight-
forward that it should be summarily decided76. However, because this was a minority
view, his Lordship proceeded to hold that wrongful life actions should not be recognised
by English law77. In retrospect, and in the light of the later development of authority in
69 [2002] NSWSC 460 at [62].
70 [2002] NSWSC 460 at [69].
71 [2002] NSWSC 460 at [72]-[75].
72 [2002] NSWSC 460 at [119].
73 See above these reasons at [23]-[27].
74 [1982] QB 1166. See also P's Curator Bonis v Criminal Injuries Compensation
Board 1997 SLT 1180.
75[1982] QB 1166 at 1174.
76 [1982] QB 1166 at 1191.
77 [1982] QB 1166 at 1193.
Kirby J
14.
England on the proper approach to strike-out applications in cases of such a kind, it can
probably be said that Griffiths LJ's initial conclusion (that there should first be a trial)
was one that would probably now be followed78.
50 Stephenson LJ, who wrote the principal reasons for the majority in
McKay, held that the daughter's action was unarguable. In his Lordship's opinion this
was because (1) the defendants' negligence had merely caused her birth, as opposed to
her disabilities79; (2) wrongful life actions postulate a duty to terminate life and this
would make an unacceptable inroad on the principle of the sanctity of human life 80; (3)
such actions would expose medical practitioners to liability in respect of "mercifully
trivial abnormalit[ies]"81; (4) they would open the door for wrongful life actions to be
brought against mothers for failing to abort82; and (5) it would be impossible to assess
damages because one cannot compare the daughter's disabled position with non-
existence83. In addition to these arguments, the Court of Appeal obviously placed
considerable weight on the fact that, not long before proceedings were commenced (but
after the daughter's birth), Parliament had enacted the Congenital Disabilities (Civil
Liability) Act 1976 (UK)84. That Act, which did not apply to the daughter's claim 85,
expressly prohibited wrongful life actions86. It had been drafted pursuant to
recommendations of the Law Commission87.
51 Canada: Few actions for wrongful life have been reported in Canada.
Those that have been have failed88. All but two were struck out before trial89.
15.
"decision to abandon the claim for wrongful life on behalf of their child was
most appropriate. By doing so, they quite properly accepted the inevitable
finding of this court that no such action lies."
53 In Jones (Guardian ad litem of) v Rostvig92, an infant born with Down's
syndrome brought an action against his mother's medical practitioner for failing to
recommend that the mother undergo testing which would have shown that, if born, he
would be affected by the syndrome. Macaulay J found for the defendant, adopting the
reasoning in McKay93.
55 United States: In the United States, one of the earliest and most
frequently cited decisions on wrongful life is Gleitman v Cosgrove96. The evidence
adduced in that case indicated that the plaintiff's mother had consulted the defendant
medical practitioners when she was pregnant with the plaintiff. She advised the
defendants that approximately one month after falling pregnant she had fallen ill with
rubella. The defendants reassured her that this would have no effect on the foetus 97.
Subsequently, the child was born in a seriously impaired condition. The plaintiff's
mother gave evidence that, if she had been informed of the risk of grave disability that
her infection with rubella presented to the child, she would have sought an abortion 98.
Summary judgment was entered for the defendants. That judgment was affirmed by the
Supreme Court of New Jersey.
16.
"The infant plaintiff would have us measure the difference between his life with
defects against the utter void of nonexistence, but it is impossible to make such a
determination. This Court cannot weigh the value of life with impairments
against the nonexistence of life itself. By asserting that he should not have been
born, the infant plaintiff makes it logically impossible for a court to measure his
alleged damages because of the impossibility of making the comparison required
by compensatory remedies."
1 Since Gleitman101, wrongful life actions have been rejected in several
jurisdictions of the United States102. Relief has been denied for disabilities resulting
99 His Honour also considered that the action was precluded by public policy
considerations concerning the sanctity of human life: see 227 A 2d 689 at 693 (1967).
100 227 A 2d 689 at 692 (1967).
101 Which was followed by the Supreme Court of New Jersey in Berman 404 A 2d 8
(1979).
102 Alabama (Elliott v Brown 361 So 2d 546 (1978)); Arizona (Walker v Mart 790 P 2d
735 (1990)); Colorado (Lininger 764 P 2d 1202 (1988)); Connecticut (Kyle and
Donnelly v Candlewood Obstetric-Gynecological Associates 6 Conn L Rptr 532
(1992)); Delaware (Garrison v Medical Center of Delaware Inc 581 A 2d 288 (1989));
Florida (Kush v Lloyd 616 So 2d 415 (1992)); Georgia (Atlanta Obstetrics &
Gynecology Group v Abelson 398 SE 2d 557 (1990)); Indiana (Cowe v Forum Group
Inc 575 NE 2d 630 (1991)); Kansas (Bruggeman v Schimke 718 P 2d 635 (1986)); Idaho
(Blake v Cruz 698 P 2d 315 (1984)); Illinois (Williams v University of Chicago
Hospitals 688 NE 2d 130 (1997)); Louisiana (Pitre v Opelousas General Hospital 530
So 2d 1151 (1988)); Maryland (Kassama v Magat 792 A 2d 1102 (2002));
Massachusetts (Viccaro 551 NE 2d 8 (1990)); Michigan (Proffitt v Bartolo 412 NW 2d
232 (1987)); Nevada (Greco v United States 893 P 2d 345 (1995)); New Hampshire
(Smith v Cote 513 A 2d 341 (1986)); New York (Becker v Schwartz 386 NE 2d 807
(1978)); North Carolina (Azzolino v Dingfelder 337 SE 2d 528 (1985)); Ohio (Hester
733 NE 2d 1161 (2000)); Pennsylvania (Speck v Finegold 439 A 2d 110 (1981)); Texas
(Nelson v Krusen 678 SW 2d 918 (1984)); West Virginia (James G v Caserta 332 SE 2d
872 (1985)); Wisconsin (Dumer v St Michael's Hospital 233 NW 2d 372 (1975)).
Kirby J
17.
"The reality of the 'wrongful-life' concept is that such a plaintiff both exists and
suffers, due to the negligence of others. It is neither necessary nor just to retreat
into meditation on the mysteries of life. We need not be concerned with the fact
that had defendants not been negligent, the plaintiff might not have come into
existence at all."
Jefferson PJ concluded that damages were recoverable for pain and suffering which the
plaintiff would endure whilst she lived as well as any pecuniary loss resulting from her
disabilities114.
103 Dumer 233 NW 2d 372 (1975); Strohmaier v Associates in Obstetrics &
Gynecology PC 332 NW 2d 432 (1982); Blake 698 P 2d 315 (1984); Smith 513 A 2d
341 (1986); Walker 790 P 2d 735 (1990).
104 Becker 386 NE 2d 807 (1978); Berman 404 A 2d 8 (1979); Phillips v United States
508 F Supp 537 (1980); James G 332 SE 2d 872 (1985); Azzolino 337 SE 2d 528
(1985); Garrison 581 A 2d 288 (1989); Atlanta Obstetrics 398 SE 2d 557 (1990).
105 Nelson 678 SW 2d 918 (1984).
106 Pitre 530 So 2d 1151 (1988).
107 Siemieniec v Lutheran General Hospital 512 NE 2d 691 (1987).
108 Lininger 764 P 2d 1202 (1988).
109 Speck 439 A 2d 110 (1981); Ellis v Sherman 515 A 2d 1327 (1986).
110 Hester 733 NE 2d 1161 (2000).
111 There are also instances where courts have refused motions to strike out wrongful
life actions: see, eg, Ahsan v Olsen 4 Conn L Rptr 282 (1991); Quinn v Blau 21 Conn L
Rptr 126 (1997).
112 165 Cal Rptr 477 (1980) (CA).
113 165 Cal Rptr 477 at 488 (1980) (emphasis in original).
114 165 Cal Rptr 477 at 489-490 (1980).
Kirby J
18.
60 Deciding the existence of a duty: In this appeal, the first issue of law is
whether the respondent owed the appellant a relevant duty of care. In Australia, there is
no settled methodology or universal test for determining the existence of a duty of
care120 such as is provided in most common law countries by the Caparo test121. The
inability of this Court to agree on a principle of general application is unfortunate 122.
"[C]onfusion approaching chaos has reigned."123 This is evident in decisions such as
Northern Sandblasting Pty Ltd v Harris124, Perre v Apand Pty Ltd125, Crimmins v
Stevedoring Industry Finance Committee126 and Graham Barclay Oysters Pty Ltd v
Ryan127.
19.
ordinarily provide guidance in determining whether a duty is in fact owed. This is not
because satisfying this test is sufficient to establish a duty of care. This Court has
repeatedly affirmed that this is not the case 128. Rather, it is because, in so far as physical
injuries arising from a positive act are concerned, it is accepted that if the reasonable
foreseeability test is satisfied, the elusive additional component of a duty of care will
generally exist129.
128 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 268
[35]; Sullivan (2001) 207 CLR 562 at 573 [25], 576 [42], 583 [64]; Graham Barclay
(2002) 211 CLR 540 at 555 [9], 624 [234] and [236], 664-665 [323]; Tame v New South
Wales (2002) 211 CLR 317 at 331 [12], 339 [46], 355 [103], 401 [249], 428 [330].
129 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44; Jaensch v Coffey (1984)
155 CLR 549 at 581-582; Hawkins v Clayton (1988) 164 CLR 539 at 576; Neindorf v
Junkovic (2005) 80 ALJR 341 at 354 [56]; 222 ALR 631 at 645-646.
130 Perre (1999) 198 CLR 180 at 253 [198].
131 (2001) 207 CLR 562.
132 (2001) 207 CLR 562 at 580-581 [53]-[54].
133 (2001) 207 CLR 562 at 581-582 [55]-[60].
134 (2001) 207 CLR 562 at 582-583 [61]-[63].
135 See, eg, Perre (1999) 198 CLR 180 at 194-195 [11]-[13], 202 [41]-[42], 204 [50],
225-226 [118]-[119], 236 [149]-[151], 259-260 [215]-[217], 290 [298], 328 [416];
Graham Barclay (2002) 211 CLR 540 at 577 [84], 597 [149], 664 [321]; Cole v South
Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 at 493 [85], 495
[92]. See Stapleton, "The golden thread at the heart of tort law: protection of the
vulnerable", (2003) 24 Australian Bar Review 135 at 141-149.
136 See, eg, Perre (1999) 198 CLR 180 at 201 [37]-[38], 326 [408]-[409]; Graham
Barclay (2002) 211 CLR 540 at 558 [20], 577 [83]-[84], 579-580 [90]-[91], 597-599
[149]-[152], 630-631 [248]-[250], 664 [321].
137 See, eg, Graham Barclay (2002) 211 CLR 540 at 577 [84], 630 [248]; Woolcock
(2004) 216 CLR 515 at 547 [74], 577 [174].
Kirby J
20.
to a person before that person is born138. However, it is now established that health care
providers owe a duty to an unborn child to take reasonable care to avoid conduct which
might foreseeably cause pre-natal injury. Such a duty has been held to exist even before
conception139. Once the child is born, the damage accrues in law and the child is able to
maintain an action for damages. Unless some disqualifying consideration operates, the
present case falls within the duty owed by persons such as the respondent to take
reasonable care to prevent pre-natal injuries to a person such as the appellant.
65 In the Court of Appeal, Ipp JA, whose reasons were supported in this
Court by the respondent, considered that the interest asserted by the appellant was
distinguishable from that of an unborn child in respect of pre-natal injuries. His Honour
gave the following reasons for adopting this distinction140:
21.
67 Primarily, the duty of care issue is concerned with the directness of the
association between the injurer and the injured. In Donoghue v Stevenson146, Lord Atkin
stated that "there must be, and is, some general conception of relations giving rise to a
duty of care". In Neindorf v Junkovic147, I proffered three reasons why enquiries relating
to the duty of care should, as Lord Atkin indicated, be made at a relatively general level
of abstraction. These were that (1) the duty concept is already overworked and unduly
complex; (2) particularising the duty of care to too great a level of specificity carries
with it the risk of eliding questions of law and fact; and (3) making specific enquiries at
the duty stage subverts the traditional structure of the cause of action in negligence,
which is designed to pose increasingly specific questions as each successive element
falls for decision.
69 The duty owed by health care providers to take reasonable care to avoid
causing pre-natal injury to a foetus is sufficiently broad to impose a duty of care on the
respondent in this case. In order to discharge that duty, the respondent did not need to
engage in conduct that was significantly different from conduct that would ordinarily be
involved in a medical practitioner's fulfilling the pre-natal injury category of duty.
Furthermore, the damage involved immediate, discernible physical damage, which the
duty relating to pre-natal injuries ordinarily encompasses. This is not a case involving
pure economic loss or another type of loss which is distinguishable from physical
damage that could take this case outside the ambit of the pre-natal injury duty of care.
70 Subject to what follows, therefore, the appellant's case on the duty issue
is an unremarkable one in which she sues a medical practitioner for failure to observe
proper standards of care when she was clearly within his contemplation as a foetus, in
utero of a patient seeking his advice and care. She was thus in the standard duty
relationship for such a case. She evidenced the important "salient feature" of
vulnerability to harm (in the event great harm), should the respondent not observe
146 [1932] AC 562 at 580 (emphasis added).
147 (2005) 80 ALJR 341 at 352-354 [49]-[56]; 222 ALR 631 at 643-646. See also
Jones v Bartlett (2000) 205 CLR 166 at 184-185 [57]; Vairy v Wyong Shire Council
(2005) 80 ALJR 1 at 8-9 [25]-[27]; 221 ALR 711 at 718-719; Fleming, The Law of
Torts, 9th ed (1998) at 117-118.
148 Fuller, The Morality of Law, rev ed (1969) at 46-49.
Kirby J
22.
proper standards of case with respect to her. Denying the existence of a duty amounts,
in effect, to the provision of an exceptional immunity to health care providers. The
common law resists such an immunity149.
73 Secondly, this argument would logically apply to exclude the duty owed
by medical practitioners to unborn children in respect of pre-natal injuries. Such a duty
has the same potential in every case to conflict with the duty owed to the mother. For
example, a medical practitioner may decide to withhold treatment from a foetus on the
basis that such treatment, while necessary to address a risk of injury to the foetus, would
be harmful or conceivably harmful to the pregnant woman. However, it is not suggested
that the duty of care concerning pre-natal injuries should be abolished.
149 Lanphier v Phipos (1838) 8 Car & P 475 at 479 [173 ER 581 at 583].
150 See reasons of Crennan J at [248]-[250].
151 See above these reasons at [64]. See also Winnipeg Child and Family Services
(Northwest Area) v G (DF) [1997] 3 SCR 925 at 947 [34], 959-960 [56].
152 See Buckley, The Law of Negligence, 4th ed (2005) at 18.
153 See above these reasons at [69]-[70].
154 See, eg, Giannarelli v Wraith (1988) 165 CLR 543 at 572; Manley v Alexander
(2005) 80 ALJR 413 at 415 [11], 419-420 [43]-[44]; 223 ALR 228 at 230-231, 236-237.
Kirby J
23.
"Conceptually [wrongful life] actions are not reconcilable with tort principles,
since in accordance with such principles they involve a comparison between
being born with a handicap and non-existence, a comparison which it is
impossible to make in money terms."
78 On the other hand, Professor John Fleming found this argument
unconvincing158:
24.
80 This principle has been endorsed by this Court on many occasions 160.
However, it is subject to numerous qualifications, three of which are relevant to this
appeal. First, assessing damages is always a practical exercise in approximation 161.
There can never be an exact equivalence between a personal injury and money.
Obviously, a court cannot restore the appellant to her pre-tort position by way of an
award of damages any more than it can restore plaintiffs in everyday personal injury
cases to their pre-tort position.
25.
her life. The respondent urged the logic of his argument. However, as Justice Oliver
Wendell Holmes famously observed, the life of legal systems derived from the common
law of England has not been fashioned by logic alone 167. It is the product of experience,
judgment and opinion offered by the judges168.
84 The problem in the present case is, in large part, an outcome of new
technology that permits genetic and other tests to identify grave foetal defects in utero
and medical and social changes that permit abortions to occur in some such cases that
once would have been impossible, unprofessional or even criminal. To apply logic alone
would be to defy the wisdom of the law in responding to a novel problem. It is
necessary to draw on past examples expressed in very different circumstances. But it is
also necessary to adapt those principles to the circumstances of the present case in the
present time169.
26.
moral code underlying our system of justice from which the fundamental principles of
tort law are derived"176.
89 A claim for damages under one head of damage can be denied while
allowing the residue of a claim. Consider, for instance, an action that includes a claim
for damages in respect of a diminution of earning capacity following negligently
inflicted personal injury. If that lost capacity would have been applied to derive earnings
in contravention of the criminal law, a claim for damages in respect of that loss may be
denied179. Yet damages may be awarded under other heads.
27.
28.
"In order to see if [the applicant] has been treated less favourably than a man the
[SDA requires one to] compare like with like, and you cannot. When she is
pregnant a woman is no longer just a woman. She is a woman, as the
Authorised Version of the Bible accurately puts it, with child, and there is no
masculine equivalent."
29.
Lordship's approach was later confirmed by the English Court of Appeal in Webb v
EMO Air Cargo (UK) Ltd195. In that case, Glidewell LJ stated that holding that the
dismissal of a pregnant woman was not contrary to the SDA because of the
impossibility of making a comparison "would be so lacking in fairness and in what I
regard as the proper balance to be struck in the relations between employer and
employee that we should only [accede to that argument] if we are compelled by the
wording of the [SDA] to do so"196.
99 The judicial discourse in the State Supreme Court in the present case and
in other like Australian and overseas cases has been permeated by a search for the
appropriate "comparator". It looms large in the reasons of the majority in this Court 197.
It has resulted in a conclusion that such a "comparator" does not exist because the
posited "comparator" is a foetus whose life would have been terminated by a medical
practitioner acting with due care. To this apparently logical argument the foregoing
cases afford two answers that, for me, are applicable and compelling. First, the
comparator contemplated in this case, non-existence, is purely hypothetical a fiction, a
creature of legal reasoning only. No one is now suggesting the actual death of the
appellant. Indeed, it is her very existence that gives rise to the pain, suffering and
expense for which she brings her action. And secondly, there are limits to the insistence
on this fictitious comparator where doing so takes the law into other inconsistencies and
to a conclusion that is offensive to justice and the proper purpose of the law of
negligence. A medical practitioner who has been neglectful and caused damage escapes
scot-free. The law countenances this outcome. It does nothing to sanction such
carelessness. It offers no sanction to improve proper standards of care in the future.
30.
102 The position is somewhat different in the case of wrongful life actions.
The compensatory principle, if applied in full rigour, requires the appellant to show that,
because of the respondent's negligence, she is worse off than she otherwise would have
been. Yet, the only way for a person who owes her existence to the respondent's
negligence to establish a loss is to show that the alternative, non-existence, would have
been preferable199. In order to succeed the appellant is required to show that, in light of
her present and prospective suffering, non-existence would (in retrospect) have been
preferable. In extreme cases, it may be a valid contention 200. Clearly, people can
sometimes express a preference for non-existence. The law has recognised this by
declaring it lawful, in certain circumstances, for medical practitioners to accede to
requests by the terminally ill to cease treatment that is keeping them alive but at the
price of subjecting them to intolerable pain and suffering201. It is also reflected in
changes to the law on suicide202.
104 A more pressing problem than that of deciding the question of whether
non-existence can sometimes be preferable to existence is the difficulty of deciding
when this is factually so. Spigelman CJ adverted to this difficulty, stating204:
199 See Harriton (2004) 59 NSWLR 694 at 704-705 [46]-[50]; Gleitman 227 A 2d 689
at 711 (1967).
200 See Turpin 182 Cal Rptr 337 at 345-346 (1982).
201 See above these reasons at [95].
202 See, eg, Crimes Act 1900 (NSW), s 31A.
203 Cruzan v Director, Missouri Department of Health 497 US 261 at 302-303 (1990).
Cf Price, "Fairly Bland: an alternative view of a supposed new 'Death Ethic' and the
BMA guidelines", (2001) 21 Legal Studies 618; Keown, "Restoring the sanctity of life
and replacing the caricature: a reply to David Price", (2006) 26 Legal Studies 109.
204 (2004) 59 NSWLR 694 at 702 [31].
Kirby J
31.
106 While I acknowledge these arguments, sight should not be lost of the fact
that courts are continually concerned with such line drawing 207. Furthermore, neither the
appellant nor her parents are asking the courts to declare lawful the termination of her
existence. To this extent the hypothesis of non-existence is an abstract one suggested by
an established legal principle. In fact, it is a red herring to claim that it presents, in a
case of the present kind, the agony of judicial decision over termination of life. In our
society such agony normally happens in medical circumstances. It usually involves
medical practitioners and patients rather than judges. The spectre of termination in the
appellant's case is now a theoretical construct. It is not a practical matter.
32.
have no right to impose their religious convictions (if any) on others who may not share
those convictions209.
109 The suggested duty to kill: One of the more absurd arguments that has
been raised against wrongful life actions (possibly stemming from the inapt label) is that
they impose a duty to kill. Stephenson LJ assumed as much in McKay when he posed
the question210 "how can there be a duty to take away life?" Similarly, in Jones,
Macaulay J stated211 "I cannot logically reconcile the duty owed to the mother
predicated upon the mother's right to choose whether or not to abort with a duty owed to
the foetus to terminate life". Sometimes, this charge is made in a more qualified form.
For instance, in the present proceedings, Ipp JA in the Court of Appeal suggested that
wrongful life actions involve "the proposition that the foetus should have been
terminated"212.
110 It is axiomatic that wrongful life actions do not entail the proposition that
the foetus should have been terminated. Less still do they impose a duty to kill. It
would be impossible to comply with any such duty considering that medical
practitioners can never compel an expectant mother to undergo an abortion 213. A
defendant in a wrongful life action will discharge his or her duty of care if reasonable
care is exercised in detecting foreseeable risks which may befall the foetus; warning of
those risks where the reasonable person would have done so; and taking reasonable care
in providing advice and guidance to the patient or sending the patient to those who can
give such advice. Sometimes, the duty can be discharged by doing nothing 214. If a
mother chooses to continue a pregnancy or to conceive in the first place where a proper,
careful and informative warning has been given, that is her decision to make215. No
liability will accrue to the health care provider if a mother adopts such a course having
been accurately advised of the risks and competently treated.
33.
112 Contentions of this nature, like the suggestion that wrongful life actions
would impose a duty to kill, betray a fundamental misunderstanding of the principles of
the tort of negligence. They overlook the tests of reasonable foreseeability and
reasonable care. Wrongful life actions could not arise for failing to persuade women to
undergo abortions. Nor could they lie, as it is sometimes suggested 218, where there was
a failure by the defendant to prevent a child from being born. This is simply not what a
duty of care in negligence entails.
"The decision whether or not to have an abortion must always be the mother's;
the duty of the medical profession can be no more than to advise her of her right
to have an abortion and of the pros and cons of doing so. If there is a risk that
the child will be born deformed, that risk must be explained to the mother, but it
surely cannot be asserted that the doctor owes a duty to the foetus to urge its
destruction. Provided the doctor gives a balanced explanation of the risks
involved in continuing the pregnancy, including the risk of injury to the foetus,
he cannot be expected to do more, and need have no fear of an action being
brought against him."
114 I would endorse this passage with the exception of the proposition that, if
there is a risk of deformity, that risk must be explained. Whether in a particular case a
possible risk requires investigation or explanation depends on available technology,
proper practice and application of the tests of reasonable foreseeability and reasonable
care.
115 "Life" as a legal injury: Most of the decisions in which an action for
wrongful life has been denied have relied upon the argument that "life" itself cannot
amount to a legal injury because so to hold would violate the "sanctity of human life"220.
The special features and uniqueness of human life are indeed fundamental principles in
the law221. But they do not represent absolute principles. They are subject to numerous
qualifications. For example, in certain circumstances, such as in some cases of self-
defence, it is lawful to kill another human being. The fact that life-sustaining medical
217 Royal Commission on Civil Liability and Compensation for Personal Injury,
Report: Volume One, (1978) Cmnd 7054-I at 311 [1485]. See also Law Commission,
Report on Injuries to Unborn Children, Law Com No 60, (1974) Cmnd 5709 at 34 [89].
218 See, eg, Watson, "Edwards v Blomeley; Harriton v Stephens; Waller v James:
Wrongful Life Actions in Australia", (2002) 26 Melbourne University Law Review 736
at 736.
219 [1982] QB 1166 at 1192.
220 See, eg, McKay [1982] QB 1166 at 1180, 1188.
221 International Covenant on Civil and Political Rights [1980] Australian Treaty
Series 23, Art 6.1. See also First Optional Protocol to the International Covenant on
Civil and Political Rights [1991] Australian Treaty Series 39; Universal Declaration of
Human Rights, Art 3.
Kirby J
34.
treatment can be withdrawn or withheld, the limited acceptance of abortion, and the
abrogation of the common law offences of suicide and attempted suicide222 in some
jurisdictions are further examples of qualifications to the principles.
116 This argument against allowing actions for wrongful life depends upon a
false characterisation of such actions. It is not life, as such, which a plaintiff in a
wrongful life action claims is wrongful. It is his or her present suffering as a life in
being223. Nor, for reasons which I have set out, does the plaintiff assert that a duty to
kill should be imposed on defendants224. Once the real character of an action for
wrongful life is understood, it is apparent that it does not infringe the special precious
features of human life.
118 Wrongful life actions arise out of allegedly negligent conduct which
causes suffering. Were this Court to allow this appeal, the decision would contribute to
the requirement that health care providers such as the respondent exercise reasonable
care to detect and warn of risks which a foetus faces. This would say nothing about how
disabled individuals, such as the appellant, once born, are to be treated 226. Accordingly,
there is no support for the suggestion 227 that actions for wrongful life are inconsistent
with legislation prohibiting discrimination on the basis of disability.
222 See generally, Williams, The Sanctity of Life and the Criminal Law, (1958), ch 7.
Cf Cruzan 497 US 261 at 302-303 (1990).
223 See above these reasons at [10].
224 See above these reasons at [111]-[112].
225 [1982] QB 1166 at 1180. See also reasons of Crennan J at [258]-[263].
226 Hester 733 NE 2d 1161 at 1168 (2000); Grainger, "Wrongful Life: A Wrong
Without a Remedy", (1994) 2 Tort Law Review 164 at 168.
227 Reasons of Crennan J at [262]-[263].
228 182 Cal Rptr 337 at 344-345 (1982).
Kirby J
35.
child is not entitled to the full measure of legal and nonlegal rights and
privileges accorded to all members of society."
122 This concern is also meritless. Mason P rightly pointed out that it
"trivialises the [appellant's claim] to suggest that accepting the cause of action would
entitle a child born with a very minor disability, such as a squint, to sue the doctor for
not advising an abortion"230. The catastrophic injuries suffered by the appellant, and by
persons like her, cannot be equated with a squint. To suggest that the appellant's
disabilities are analogous to a squint is absurd and insulting. However, there are even
more profound problems with this argument.
124 Even if there were a convincing reason of principle for regarding the
magnitude of the disability as going other than to the extent of the damage (a doubtful
proposition), there would be insuperable practical hurdles confronting wrongful life
actions brought in respect of "minor defects". For one thing, a plaintiff who suffers from
"minor defects" will hardly be able to show, as required by the compensatory
principle231, that non-existence would have been preferable. Such actions would
probably also encounter difficulties in establishing causation, that is, that if properly
advised of the risk of congenital defects, the mother would have aborted her pregnancy.
Equally, proving breach of the duty of care would be problematic. For instance, in
wrongful life actions arising out of a failure to diagnose or a failure to warn, depending
on the evidence, it may often be reasonable for the defendant to abstain from conducting
tests for "minor defects" or from warning the prospective mother about such risks. In
36.
the case of some parents, there would be moral and religious inhibitions that would
restrain resort to termination for a defect such as a squint.
"If a case arose where, despite due care by the medical profession in transmitting
the necessary warnings, parents made a conscious choice to proceed with a
pregnancy, with full knowledge that a seriously impaired infant would be born,
that conscious choice would provide an intervening act of proximate cause to
preclude liability insofar as defendants other than the parents were concerned.
Under such circumstances, we see no sound public policy which should protect
those parents from being answerable for the pain, suffering and misery which
they have wrought upon their offspring."
127 The flaws in this reasoning are so obvious that they scarcely require
expression237. First, it is not unknown in Australia for children to sue their parents in
tort. Australian law does not recognise any principle of parental immunity in tort 238.
Thus, actions against parents by their children are not uncommon in the context of
motor vehicle accidents. It has been held that children even enjoy a right of action
against their mothers in respect of pre-natal injuries sustained as a result of the mother's
232 [1982] QB 1166 at 1181. See also at 1188 per Ackner LJ.
233 165 Cal Rptr 477 at 488 (1980).
234 Reasons of Callinan J at [205].
235 Edwards [2002] NSWSC 460 at [119].
236 Ploscowe, "An Action for 'Wrongful Life'", (1963) 38 New York University Law
Review 1078 at 1080.
237 A similar argument has been raised in the wrongful birth context. In Cattanach it
was rejected as "speculation" ((2003) 215 CLR 1 at 36 [79] per McHugh and Gummow
JJ) and "judicial fantasy" ((2003) 215 CLR 1 at 56 [145] of my own reasons).
238 Hahn v Conley (1971) 126 CLR 276.
Kirby J
37.
negligent driving239. There is no evidence that such proceedings have resulted in any
disintegration of the family.
128 It is true that there are distinctions between actions seeking damages in
respect of personal injuries and actions for wrongful life. Most notably, the latter, unlike
the former, involve the proposition that, but for the negligence of the defendant, the
plaintiff would not have existed. Yet the suggestion that, when compared with run-of-
the-mill personal injury actions, wrongful life actions are liable to provoke familial
discord is highly contestable. It is possible, perhaps even likely, that a child who suffers
from debilitating disabilities might hold greater resentment towards his or her mother if
those disabilities flowed from, say, the mother's negligent driving, rather than from a
decision not to submit to an abortion once the mother discovered that her child would
suffer from such disabilities.
129 Secondly, this argument ignores the reality of tort litigation. The plaintiff
in a wrongful life case is typically a profoundly disabled infant who has little, if any,
personal awareness of the proceedings. Accordingly, it is difficult to see how a wrongful
life action, if exceptionally commenced against the mother, would be apt to fracture the
familial relationship. The reality is that wrongful life actions, like wrongful birth
actions, are about money rather than love or family feelings 240. For such actions to be
viable in the first place there normally has to be an insurer or other deep pocket.
130 Thirdly, just because it is held that a wrongful life action lies against a
negligent health care provider, it does not necessarily follow that such an action would
lie against the mother. There is a clear difference in the relationship between a child and
a health care provider, on the one hand, and between a child and his or her mother, on
the other. Particularly important to the former is the professional association involved.
In the latter, considerations of the mother's own autonomy and bodily integrity would
have to be given full weight241. The relationships are fundamentally different. If this
Court were to hold that a wrongful life action existed in the present proceedings against
the respondent, that decision would say nothing at all about whether such an action lay
against the mother.
131 Fourthly, as a practical matter, it is highly unlikely that any court would
conclude that a mother's decision to decline to undergo an abortion would constitute a
breach of any duty of care owed to the foetus 242. Such a duty would only be breached if
the trier of fact decided that a reasonable person in the mother's position would have
terminated the pregnancy. While the gravity of the harm and the likelihood of the risk of
injury might be given weight in favour of a finding of a breach of duty, the right of a
239 See, for example, Lynch v Lynch (1991) 25 NSWLR 411; Bowditch v McEwan
[2003] 2 Qd R 615.
240 Cattanach (2003) 215 CLR 1 at 56 [145]; Hester 733 NE 2d 1161 at 1168 (2000).
241 Dobson v Dobson [1999] 2 SCR 753 at 768-769 [23].
242 See Emeh v Kensington and Chelsea and Westminster Area Health Authority
[1985] QB 1012 at 1019, 1024-1025, 1027-1028. Although cf Glover, Causing Death
and Saving Lives, (1977) at 147-149.
Kirby J
38.
132 The influence of legislative change: Since 2002, the legislatures of all
Australian jurisdictions have enacted legislation244 that has reduced, or eliminated, the
ability of plaintiffs to sue in tort. The chief stated purpose of such legislation has been
to reduce the cost of insurance premiums 245, particularly for public liability and medical
negligence insurance246. A national inquiry, established to make recommendations on
how this objective should be realised, was required to proceed on the assumption that
"[t]he award of damages for personal injury has become unaffordable and unsustainable
as the principal source of compensation for those injured through the fault of
another"247.
133 In the present case, in the Court of Appeal, Ipp JA suggested that, in this
legislative climate, it would be wrong for a court to expand the range of interests
protected by tort law by recognising an action for wrongful life. His Honour said248:
243 Waters, "Wrongful Life: The Implications of Suits in Wrongful Life Brought by
Children against their Parents", (1981-1982) 31 Drake Law Review 411; Capron, "Tort
Liability in Genetic Counseling", (1979) 79 Columbia Law Review 618 at 662-666.
244 The most relevant legislation includes the Trade Practices Amendment (Liability
for Recreational Services) Act 2002 (Cth); Civil Liability Act 2002 (NSW); Civil
Liability Amendment (Personal Responsibility) Act 2002 (NSW); Wrongs and Other
Acts (Public Liability Insurance Reform) Act 2002 (Vic); Wrongs and Other Acts (Law
of Negligence) Act 2003 (Vic); Personal Injuries Proceedings Act 2002 (Q); Civil
Liability Act 2003 (Q); Civil Liability Act 2002 (WA); Volunteers (Protection from
Liability) Act 2002 (WA); Wrongs (Liability and Damages for Personal Injury)
Amendment Act 2002 (SA); Law Reform (Ipp Recommendations) Act 2004 (SA); Civil
Liability Act 2002 (Tas); Civil Law (Wrongs) Act 2002 (ACT); Personal Injuries
(Liabilities and Damages) Act 2003 (NT); Personal Injuries (Civil Claims) Act 2003
(NT).
245 Harriton (2004) 59 NSWLR 694 at 722 [164] per Mason P.
246 Spigelman, "Negligence and insurance premiums: Recent changes in Australian
law", (2003) 11 Torts Law Journal 291 at 293.
247 Terms of Reference to the Review of the Law of Negligence: see Panel of Eminent
Persons, Review of the Law of Negligence: Final Report, (2002) at ix.
248 Harriton (2004) 59 NSWLR 694 at 746 [337] (citations omitted). Studdert J in
Edwards [2002] NSWSC 460 at [120] also appears to have taken this consideration into
account in denying recovery. Cf McHugh, "Introduction: Sydney Law Review Torts
Special Issue", (2005) 27 Sydney Law Review 385 at 390-391.
Kirby J
39.
249 Spigelman, "Negligence: the Last Outpost of the Welfare State", (2002) 76
Australian Law Journal 432 at 437-440.
250 See, eg, Civil Liability Act 2002 (NSW), s 5B(1).
251 See, eg, Civil Liability Act 2002 (NSW), s 5D.
252 McDonald, "Legislative Intervention in the Law of Negligence: The Common
Law, Statutory Interpretation and Tort Reform in Australia", (2005) 27 Sydney Law
Review 443 at 446-448.
253 Sugerman, "United States Tort Reform Wars", (2002) 25 University of New South
Wales Law Journal 849 at 852.
254 See Spigelman, "Tort law reform: An overview", (2006) 14 Tort Law Review 5 at
11-12.
255 (1980) 146 CLR 40 at 47.
256 See Civil Liability Act 2002 (NSW), s 5B(1).
257 (1992) 175 CLR 479.
258 [1957] 1 WLR 582; [1957] 2 All ER 118.
259 See Civil Liability Act 2002 (NSW), s 5O.
260 See Civil Liability Act 2002 (NSW), s 21.
261 (2003) 215 CLR 1.
Kirby J
40.
wrongful birth cases have been enacted in New South Wales262, Queensland263 and South
Australia264.
137 The notion that statutory provisions can cause the common law to alter
its course is not new265. In McKay, the English Court of Appeal was clearly influenced
by the then recent enactment of the British legislation prohibiting wrongful life
actions266. In Pilmer v Duke Group Ltd (In Liq)267 this Court considered whether
common law notions of contributory negligence, affected by apportionment legislation
enacted in all Australian jurisdictions, could diminish awards of equitable compensation
for breach of fiduciary duty. Unanimously, that question was answered in the
negative268. That answer was given principally on the ground that to admit a "defence"
of contributory negligence in that context would be opposed to the character of
fiduciary duties269. Although I agreed with that conclusion, I acknowledged that both
equity and the common law were susceptible to influence by statutory changes270:
"I do not consider that equitable remedies (any more than those of the
common law) are chained forever to the rules and approaches of the past. Nor
do I find the notion of developing equitable rules (any more than those of the
common law271) by reference to statutory developments as uncongenial as, on
occasion, this Court has done272. The idea that the common law develops in
'imitation' of statutes is not a recent one 273. A similar notion was sometimes
reflected in equitable remedies, particularly in relation to defences based on
statutes of limitations274. Furthermore, all equitable and legal principles must
today operate in a universe dominated by the star of statute. It would be
41.
surprising if the gravitational pull of statute, felt everywhere else in the law, did
not penetrate into the expression and re-expression of non-statutory rules275."
138 In the common law of torts, the recent turn of the Australian judicial tide
in favour of defendants276 may not be wholly unrelated to legislative developments.
Although the reversal of previous approaches, effected by the courts, preceded the
enactment of the most recent legislation, the legislation was widely anticipated. The
judicial reversals have arguably gathered momentum since those enactments. This
development presents an important issue of judicial methodology. If the courts are, in
fact, relying on legislative policy as a reason for altering the course of the common law
of torts, that reliance should be disclosed277. Without such disclosure, the
appropriateness of such reliance could never properly be considered and contested278.
139 While I adhere to the views that I expressed in Pilmer279, in the present
case there are significant arguments against developing the common law by analogy
with legislation or by reference to a trend said to exist in such legislation. Most
obviously, as a practical matter, it is difficult to see how this Court could confidently
develop the common law in general conformity with legislation where different
approaches have been taken in different jurisdictions and where, in other jurisdictions,
no relevant law has been enacted. How could the courts set the common law in a
parallel course when the legislatures themselves have struck off in a number of different
directions280?
275 See Gray v Motor Accident Commission (1998) 196 CLR 1 at 12-13 [33], 27 [83],
45-47 [128]-[130]; Esso Australia Resources Ltd v Federal Commissioner of Taxation
(1999) 201 CLR 49 at 61-62 [23], 89-90 [105].
276 See Luntz, "Round-up of cases in the High Court of Australia in 2003", (2004) 12
Torts Law Journal 1 at 1-2; Luntz, "Turning points in the law of torts in the last 30
years", (2003) 15 Insurance Law Journal 1 at 22; Luntz, "Torts Turnaround
Downunder", (2001) 1 Oxford University Commonwealth Law Journal 95.
277 See Wong v The Queen (2001) 207 CLR 584 at 622 [102]; Cattanach (2003) 215
CLR 1 at 104 [291]; Woolcock (2004) 216 CLR 515 at 573 [160]; Johnson v The Queen
(2004) 78 ALJR 616 at 626-627 [41]; 205 ALR 346 at 359; Travel Compensation Fund
v Tambree t/as R Tambree and Associates (2005) 80 ALJR 183 at 197-198 [66]-[67];
222 ALR 263 at 281; Osmond [1984] 3 NSWLR 447 at 462-464; Soulemezis v Dudley
(Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259-261; Hartigan Nominees Pty Ltd v
Rydge (1992) 29 NSWLR 405 at 418-421.
278 Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the
Australian and the United States Experience", (1986) 16 Federal Law Review 1 at 5;
Mason, "Future Directions in Australian Law", (1987) 13 Monash University Law
Review 149 at 159.
279 See also Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 568-570; Gray (1998)
196 CLR 1 at 25 [80].
280 Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 669; Esso (1999)
201 CLR 49 at 61-62 [23] and [25]; R v Iby (2005) 63 NSWLR 278 at 290 [77]-[78].
Kirby J
42.
140 Attempts to reformulate the common law in this way would also throw
up many imponderables. Discerning the purpose lying behind legislation is often an
arduous exercise. Yet it is an immeasurably more difficult exercise to discover what
Parliament intended for the law where it has abstained from expressly spelling out what
the law should be, as the New South Wales Parliament has on the issue of wrongful life.
As Mason P noted in the Court of Appeal281, s 70 of the Civil Liability Act 2002 (NSW)
provides that the restriction on wrongful birth actions contained in s 71 "does not apply
to any claim for damages by a child in civil proceedings for personal injury ... sustained
by the child pre-natally". Therefore, so far as New South Wales is concerned,
Parliament has left the particular question to the courts.
142 On the particular issue before this Court in this appeal the several
legislatures of Australia have been totally silent. By inference, they have left it to the
courts to perform their constitutional functions unimpeded by legislation 285. The courts
should do their duty in the normal way 286. That duty, in a novel case, involves the
provision of an answer that accords with established judicial authority. Necessarily, to
address the novel features of the case, untouched by past decisional authority, this Court
must reason by analogy. It must develop legal principle and legal policy to the extent
that these are relevant287.
43.
argument have sought to bolster it by asserting that wrongful birth actions, unlike
wrongful life actions, do not give rise to problems in terms of quantifying the
damages289.
144 While it may be agreed that, where a wrongful life action lies, it is likely
that a wrongful birth action would also exist, with respect, it is little short of astonishing
that this line of reasoning has been entertained as a serious answer to wrongful life
actions.
145 Wrongful birth actions are claims brought by parents in their own right
for loss incurred by them by reason of the birth of an unplanned or unexpected child.
Because the courts in Australia eschew any concern with the manner in which damages
awards, once ordered, are used290, parents who recover any such damages are, at present,
under no legal obligation to apply any damages recovered for the benefit of the child 291.
On this basis, damages recovered in wrongful birth actions are prone to dissipation by
the parents292. As well, there is no guarantee that the damages would correspond with
the extent of the child's loss and suffering. Nor is there any assurance that the parents
would be willing, or able, to pursue a wrongful birth action. Whether in the particular
case a parental action lies is fortuitous293.
44.
hand in any development of tort law and stop short of protecting the interest asserted by
the appellant. His Honour reasoned294:
148 I agree with Ipp JA that there are many imponderables presented to the
law by advances in genetic, specifically genomic, science. However, I disagree with his
Honour's solution which is that, in this respect, the judges should place the common law
into a deep freeze. This has not been the usual response of the judges to a time of rapid
social and technological change. Quite the contrary.
150 Whether this Court likes it or not, genetic testing and other sophisticated
technology is playing an increasingly significant role in reproductive decision-making
and subsequent life support to the profoundly disabled. In light of this, it would be
erroneous for tort law in Australia to opt out of its function of expressing the rules that
294 Harriton (2004) 59 NSWLR 694 at 746 [338]. See also Todd, "Wrongful
Conception, Wrongful Birth and Wrongful Life", (2005) 27 Sydney Law Review 525 at
540-541.
295 Scott v Davis (2000) 204 CLR 333 at 370 [109]; Brodie (2001) 206 CLR 512 at
591-592 [203]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 50 [72].
296 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146
at 152 [3].
297 [1932] AC 562.
298 Roe v Minister of Health [1954] 2 QB 66 at 83-84.
299 See above these reasons at [140].
300 Neindorf (2005) 80 ALJR 341 at 359-360 [84]-[85]; 222 ALR 631 at 653.
Kirby J
45.
govern the rights and obligations of parties in relevant relationships 301. Tort law, by the
threat of a liability to pay damages, can stimulate and require those who offer genetic
services to take reasonable care in delivering those services. The prospects of
discoveries in genetic science support, rather than detract from, the need for judicial
elaboration of tort law in this area. As Justice Allen Linden has said302:
Conclusions
152 In virtually all matters where wrongful life remedies would be available
by the application of common law principles, legislatures in Australia would ultimately
have the last word. But just as parliaments have their functions in our governance and
law-making, so have the courts. The courts develop the common law in a principled
way. They give reasons for what they do. They constantly strive for the attainment of
consistency with established legal principles as well as justice in the individual case.
153 In the present appeal, that approach favours the provision of damages to
the appellant whose life of profound suffering and costly care is a direct result of the
agreed negligence of the respondent. That is why this case is not really to be labelled as
one about wrongful life. The appellant's life exists. It will continue to exist. No one
suggests otherwise. The question is who should pay for the suffering, loss and damage
that flow from the respondent's carelessness. That is why the proper label for the
appellant's action, if one is needed, is "wrongful suffering". The ordinary principles of
negligence law sustain a decision in the appellant's favour. None of the propounded
reasons of legal principle or legal policy suggests a different outcome.
46.
Orders
154 The appeal should be allowed with costs. The judgment of the Court of
Appeal of the Supreme Court of New South Wales should be set aside. In place of that
judgment it should be ordered that the appeal to that Court be allowed with costs. The
orders of Studdert J should be set aside. The respondent should pay the appellant's costs
in the Supreme Court of New South Wales. The questions formulated by Studdert J
should be answered as follows:
1. Yes.
2. The categories available in personal injuries cases.
155 The proceedings should be remitted to the Supreme Court of New South
Wales for trial in accordance with these answers.
Hayne J
47.
156 HAYNE J. The essential facts in this appeal can be stated shortly. The appellant
was born suffering from severe physical and intellectual disabilities. Her mother had
rubella during the first trimester of pregnancy. The appellant alleges that if her mother
had been given proper medical advice, her mother would have lawfully terminated the
pregnancy. Nothing that the respondent doctor did, or failed to do, is alleged to have
contributed to the appellant developing any of the disabilities from which she suffers.
But it is alleged that if proper advice had been given to the appellant's mother, the
appellant would not have been born.
157 The appellant has sued the doctor in negligence, alleging that he should
have advised her mother of the risks of the appellant being born with severe disabilities
and should have counselled her that "the only way to prevent" a child suffering these
disabilities throughout its life would be to terminate the pregnancy. Whether the doctor
failed to act with reasonable care and skill has not been decided. It is said that there are
more fundamental reasons why the appellant's action should fail.
158 The procedural history of the matter, and a more detailed description of
the relevant facts, are set out in the reasons of Crennan J. Reference is made in her
Honour's reasons to a number of decisions of courts of other jurisdictions deciding
issues like those that arise here. I need make no detailed reference to any of those
matters. I agree with Crennan J that the appellant has not suffered what the law should
recognise as "damage". I prefer to leave aside any consideration of what that might
suggest about the existence of a duty of care. Because an essential element of the cause
of action for negligence, damage, cannot be established, the appellant's action must fail.
The appeal should be dismissed with costs.
What is damage?
48.
identifying what would be the content of the relevant premise. In particular, what
constitutes "damage"?
161 While the task must begin from an understanding of the place of the law
of negligence in the fabric of the law, it must also begin with a clear recognition of the
difficulties and limitations that are inherent in attempting to classify the law, or the
purposes of particular branches of the law. Classification of judge-made law is
hazardous because the common law is a practical instrument which does not develop by
reference only to considerations of theoretical harmony and taxonomic elegance. It is
only "[f]or convenience, [that] the law creates certain pigeon-holes (labelled: property,
contract, tort, and so on) in which it may file the rather untidy facts of life"305.
162 There is not, and never has been, any wholly accurate and concise
definition of what should be placed in the pigeon-hole marked "tort". Nonetheless, as
Holmes pointed out306:
"Be the exceptions more or less numerous, the general purpose of the law
of torts is to secure a man indemnity against certain forms of harm to person,
reputation, or estate, at the hands of his neighbors, not because they are wrong,
but because they are harms." (emphasis added)
By contrast, the chief focus of the criminal law can be seen to be the infliction of
punishment by the State for commission of certain conduct or contravention of
stipulated standards. That is, tort focuses chiefly upon harm, crime focuses chiefly upon
fault. Yet the tort of negligence requires proof of fault.
164 So much appears from the remedy which is granted to a plaintiff who
succeeds in an action for negligence. Upon proof of damage, the plaintiff will be
305 Paton, A Text-Book of Jurisprudence, 3rd ed (1964) at 118.
306 Holmes, The Common Law, (1881) at 144.
307 (2003) 216 CLR 161 at 198 [114].
308 (1966) 117 CLR 118 at 149. See also Gray v Motor Accident Commission (1998)
196 CLR 1 at 7-8 [16] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Hayne J
49.
awarded damages. Demonstrating no more than that a person owed another a duty of
care and acted without reasonable care will not suffice to establish the cause of action.
Absent proof of damage, a claim for negligence must fail. Leaving aside the anomaly
presented by the power to award exemplary damages309, the damages that are awarded
in an action for negligence are damages to compensate the plaintiff for the harm that is
suffered as a result of the defendant's negligence. The well-known basic rule310 is that
those damages are to be assessed as the sum which will, so far as possible, put the
plaintiff in the position the plaintiff would have been in had the tort not been committed.
165 At once it can be seen that measuring the damages that are to be awarded
to a plaintiff who has demonstrated that he or she has suffered damage, of which the
defendant's breach of a duty of care owed to the plaintiff was a cause, requires the
making of a comparison. It invites attention to the position in which the plaintiff would
have been had the tort not been committed and the position in which the plaintiff is
shown now to be. Often that comparison is not easily made. Very often, the results of
the comparison are not readily expressed as a sum of money. Pain and suffering, loss of
enjoyment of life, and the like are not readily measured in dollars311. But pecuniary
compensation is the best remedy the law has for harms sustained by a person even
where those harms do not represent an inroad upon a person's financial or material
assets.
167 In the appellant's written submissions it was said that she had suffered
"grievous injury". It is necessary to understand how that expression is used in this case.
It is not used to describe the condition of, or state of affairs concerning, the appellant as
differing from some condition or state that previously existed or was previously enjoyed
by her. Nor is it used to describe any physical or economic consequence that is alleged
to have been caused by any negligent act or omission of the doctor, other than the
consequence that the appellant's mother did not terminate her pregnancy and the
appellant was born.
309 Gray v Motor Accident Commission (1998) 196 CLR 1.
310 Livingstone v Rawyards Coal Company (1880) 5 App Cas 25 at 39 per Lord
Blackburn.
311 Owners of Steamship "Mediana" v Owners, Master and Crew of Lightship "Comet"
(The "Mediana") [1900] AC 113 at 116.
Hayne J
50.
168 The appellant contended that she demonstrated that she had suffered
damage (that she had in the relevant sense suffered "injury" or "harm") by comparing
her condition with not having been born. The appellant expressly disavowed the
argument that the appropriate comparison is with the "ordinary", "able" or "average"
person. The appellant insisted that the proper comparison is with "not having been born"
because, so the argument ran, the comparison that must be made is with what would
have been the case if the doctor had not been negligent. If the doctor had not been
negligent, the appellant's mother would have terminated the pregnancy.
171 It is because the appellant cannot ever have and could never have had a
life free from the disabilities she has that the particular and individual comparison
required by the law's conception of "damage" cannot be made. Because she has never
had and can never have any life other than the life she has, with the disabilities she has,
she cannot show that she has suffered damage, as that legal concept is now understood,
as a result of a failure to give the advice she says her mother should have been given.
51.
is that the risks of which her mother should have been advised were so grave that
termination of the pregnancy would have been warranted. The circumstances of the case
might therefore be said to be both exceptional and confined. If the doctor was negligent,
why should the cost of providing care not fall upon a party who is shown to be negligent
rather than upon the appellant's parents or society at large?
173 Neither the severity of the appellant's disabilities, nor the (in this case,
assumed) demonstration of duty coupled with want of reasonable care, compels the
conclusion that living with her disabilities should be recognised as a form of damage. It
is as well to explain why that is so. In doing that, it is necessary to touch upon some
aspects of questions of causation and policy.
174 The appellant's case is that a reasonable doctor would have advised the
appellant's mother of the risks of her being delivered of a child with severe disabilities
and would have advised her that the only way to avoid the risks coming to pass was to
terminate the pregnancy. In this case, the risks came to pass. The appellant has severe
disabilities. But if the asserted negligence is a failure to recognise and advise of risks,
what is to be done in the case where the risks are not fully realised? Is the child of a
woman whose doctor should have advised her of the risks consequent upon exposure to
rubella to have an action against the doctor if the child has any form of adverse
consequence from the mother's exposure and can show that the mother would have
chosen lawfully to terminate the pregnancy? Or is the concept of "damage" to be
confined to cases where the risk of severe disabilities is substantially realised? What
would be the principle which would warrant confining recovery in that way?
175 These questions provoke examination of some steps that lie behind the
appellant's contentions about what is "damage". In particular, they provoke some
limited reference to some aspects of questions of duty and causation. The appellant
contends that her mother's doctor owed a duty of care to the appellant, not just her
mother. For present purposes, the existence of a duty of care may be accepted 312. It is a
duty that the appellant cannot enforce until after birth. Only then does she have legal
personality to enforce the duty. But that does not deny the existence of the duty.
176 The appellant contends that to discharge the duty, the doctor should have
offered information and advice to her mother. But her mother would then have been
confronted by the choice of terminating the pregnancy or not. Determining the
lawfulness of a termination focuses upon the pregnant woman's circumstances
especially upon her health313. That inquiry examines the reasonable belief of the doctor
who performs the termination but is not directly concerned with the subjective beliefs of
the mother. It is, essentially, an objective inquiry. If termination is lawful, the woman
must choose whether to take that course. That choice is wholly subjective.
52.
177 A mother may think it right to take account of all sorts of considerations
in deciding whether to terminate a pregnancy. Not least among those considerations are
her religious and other beliefs. The choice is hers to make. For a court to decide what a
plaintiff's mother would have done if confronted by proper information and advice
about the risks of continuing with a pregnancy, it may well be necessary to explore the
matters that the mother would or may have taken into consideration in reaching her
decision. Necessarily, that would be a difficult314 and intrusive inquiry. That does not
mean that a rule must be adopted which avoids making such inquiries. But what it may
be thought to point to is some questions about causation.
178 The duty posited, owed by the doctor to the unborn, is said to require the
doctor to give advice and information to the mother. Whether it would be lawful to
terminate the pregnancy is a question decided objectively. How the mother would act in
response to proper advice and information would be a matter for her choice. If, given
proper information and advice, the woman concerned would have chosen not to
terminate the pregnancy, a doctor's failure to give proper information or advice to the
mother during pregnancy could not be said to have caused the child, when born, any
damage, however broadly "damage" is understood. At least to this extent a doctor's
liability to the child would then depend upon the particular subjective views of the
mother.
179 But in a case where it is shown that the mother would have terminated
the pregnancy, the subjective nature of the considerations which inform the mother's
choice about termination may well be thought to be insufficient reason to conclude that
the doctor's failure to tender proper advice was not a cause of the plaintiff being born.
And if that is so, rather than pointing to some issue about causation, the interjection of
the element of the mother's choice reveals only that there will be a significant number of
cases where, because the mother would not have terminated the pregnancy, the doctor
who negligently failed to proffer advice about the risks of continuing with the
pregnancy would not be liable to the child.
180 The importance of this observation is that it reveals that to adopt a rule
which would extend the concept of "damage", whether by inviting comparison between
the life the plaintiff has and the kind of life which others have, or by describing the
consequence of the asserted negligence as "living with disabilities", in the name of
promoting careful practice by doctors, would be to adopt a rule whose engagement in a
particular case would depend upon the mother's choice. Such a rule would, at best, have
only indirect effects on the promotion of careful medical practice.
181 There is, then, no basis demonstrated for departing from the established
rule that the law recognises as "damage" the difference between what the particular
plaintiff is or has and what that plaintiff was or would have had. The appellant's
disabilities in this case are not a form of damage. She could have had no life other than
the life she has. The common law should not be developed in the way for which the
appellant contended.
314 cf Rosenberg v Percival (2001) 205 CLR 434.
Hayne J
53.
54.
183 CALLINAN J. The question that this appeal raises is one that has exercised the
minds of philosophers, theologians, scientists, legislators and lawyers throughout the
world: may a child born profoundly disabled who probably would have been aborted
by her mother had she been informed of the child's likely condition at birth, as she
should have been, but negligently was not, by the medical practitioner responsible for
her, sue the practitioner for damages?
184 There has been no trial. The facts that I summarize have been taken as
correct for the purposes of deciding the questions posed at this stage of the proceedings.
The facts
"Herewith Mrs Olga Harriton. (illegible) LMP [last menstrual period] 15/7/80.
+ve preg test. She had ? viral illness 2/52 ago and rubella titre 30. I have
reassured her that she has no problems. Could you please see and continue.
Paul. PS: Morning sickness. Debendox PRN."
187 The respondent should not have given the reassurance that he did to
Mrs Harriton. There was a further blood test which a prudent medical practitioner would
have recommended, an "IgM" blood test. Had it been performed, it would have yielded
positive results for rubella antibodies, and a diagnosis of rubella would have been made.
55.
infection. The advice would have included that the only way to prevent a child from so
suffering throughout the child's life would be to terminate the pregnancy.
189 It would not have been unlawful for Mrs Harriton to act on advice of that
kind and to terminate the pregnancy.
190 The appellant was born profoundly, incurably and tragically disabled. In
order to survive, she will need, as she has done throughout her life, constant care and
attention.
191 Whether after conception some measures may have been taken to
alleviate the effects of the infection did not arise for consideration. The case proceeded
on the basis that Mrs Harriton, had she been advised of the matters of which the
respondent failed to advise her, would have terminated the pregnancy, and the appellant
would never have been born.
192 By her tutor, her father, the appellant has sued the respondent in the
Supreme Court of New South Wales. The facts that I have stated, although not
determined, have been agreed for the purposes of the disposition of the threshold point
that arises, whether the appellant can maintain her action against the respondent.
193 In her prayer for relief, the appellant claimed damages "representing the
extraordinary past and future medical and care costs created by her disabilities; damages
pursuant to the principle in Griffiths v Kerkemeyer315 [that is for care gratuitously
provided]; interest; and costs".
194 The threshold point was decided at first instance adversely to the
appellant by Studdert J316.
195 His Honour did not doubt that a relevant duty of care can be owed to an
unborn child, indeed that the duty may be owed to a child not even conceived at the
time of a negligent act, provided that the child be within the class to whom the duty is
owed, but that, because the only duty which the appellant was owed, was not to harm
her, she could not recover.
56.
198 Spigelman CJ sought first to identify the loss suffered by the appellant,
and asked whether there was a duty with respect to that kind of loss. In answering that
question, a court had to be attentive, his Honour said, to the ethical foundation for the
relevant legal principles. The duty asserted by the appellant did not reflect values
generally, or even widely, held in the community. There was no sufficiently direct
relationship between the respondent and the appellant to support the appellant's claim.
199 Ipp JA was of the opinion that the case was one in which the
compensatory principle could simply not be applied: it was impossible to compare
existence, even in a profoundly disabled state, with non-existence. His Honour was
unable to find any supporting justifications in policy, for a refashioning of the
compensatory principle in such a way as to enable damages to be awarded to the
appellant. The considerations of policy to which his Honour referred were that the
notion of "sanctity of life" militates against recognition of any duty for which the
appellant contended. Increasing knowledge of genetics should make courts extremely
cautious in varying legal principle to accommodate a law of the kind for which the
appellant contended. In any event, there was a remedy available to parents, to whom a
disabled child was born if medical negligence caused the disability, and that should
suffice.
200 In dissent, Mason P pointed out that the common law strived to ensure
that a claim for damages, even a novel one, attract the full range and measure of
damages usually allowed. In his opinion, responsibility of a doctor treating a pregnant
woman, extends to the foetus, and is a different duty from the duty not to cause harm or
injury. The respondent's negligence precluded the making of any informed decision by
the parents. His Honour took the view that there was no conceptual difference between
the critical event that might enable parents to sue, and a child's putative claim that he or
she should not have been born. The appellant should not fail because she is unable to
demonstrate the monetary value of non-existence. Any contention to the contrary
offends the principle that the wrongdoer bears the evidential onus of establishing the
existence and value of offsets and collateral advantages said to stem from the wrong.
The judicial equation of pre-birth non-existence and death arguably offends against the
principle of judicial agnosticism.
201 In this Court the appellant advances the same arguments as in the courts
below. Reference was again made to like cases in many other jurisdictions. The
appellant sought to place particular emphasis upon a decision of the Supreme Court of
317 Harriton (by her tutor Harriton) v Stephens (2004) 59 NSWLR 694.
Callinan J
57.
Israel318 in which as a result of medical negligence a woman was not advised of the
possibility of the transmission of an hereditary illness which could affect any child
whom she might conceive. She became pregnant, and gave birth to a boy to whom the
hereditary disease was passed, and who, in consequence, was severely disabled. The
Supreme Court of Israel held that non-life was preferable to impaired life, and that the
wrongdoer should compensate the child so that his quality of life would be better as far
as money could help. Two judges of the Court, Ben-Porat DP and Barak J, in holding
that the child could recover, said that the amount of damages awarded should be as
much as he had lost due to his impaired situation. The decision was however tellingly
criticized in an article written by David Heyd 319 who pointed out that the reasoning
necessarily involved the erection of a fiction which the Court nowhere acknowledged in
the reasons for judgment320.
202 The appellant also placed weight upon Burton v Islington Health
Authority321. But that case does not in my opinion assist her. It was a case in which the
plaintiff suffered injury after he had been conceived, and as a result directly of the
defendant's negligent treatment of his mother and himself during the confinement and
delivery. The issue was quite different from the issue here. It was in substance whether
any distinction should be drawn between injuries suffered immediately after birth, and
injuries after conception322.
204 There are many other policy concerns arguing in both directions the
relevance and significance of which may well vary according to the philosophical,
318 Zeitsov v Katz (1986) 40(2) PD 85.
319 Heyd, "Are 'Wrongful Life' Claims Philosophically Valid? A Critical Analysis of a
Recent Court Decision", (1986) 21 Israel Law Review 574.
320 (1986) 21 Israel Law Review 574 at 584-585.
321 [1993] QB 204.
322 [1993] QB 204 at 219.
Callinan J
58.
theological and perhaps even economic perceptions of those called upon to give
consideration to them. Some of them are touched upon in Cattanach v Melchior323, in
particular by the minority in that case. The matters which influenced Mason P in
reaching his dissenting opinion are all weighty ones of legal and social concern. There
are also these. Defensive medicine, practised as a result of a decision favourable to the
appellant, could lead to a greater readiness on the part of practitioners to counsel
abortion324. The damages in a case of this kind, unless in some way arbitrarily
restricted, are likely to be very great. Should the state therefore rather than the doctor
support the child? To seek to compare for the purpose of assessing damages, non-
existence with the state of existence is impossible. Nonetheless, that practical
impossibility should be outflanked by the erection of a fiction involving a comparison
between an ordinary, non-disabled life and a disabled life. Throughout the history of the
common law, fictions have been devised and applied as if they represented the true
position. Modern jurisprudence leans against fictions. There should be coherence in the
law. Absolute coherence, if the appellant were to succeed here, would require that a
mother, who knew of, but failed to abort a foetus likely to emerge at full term seriously
disabled, be liable to that child, a prospect that I suspect few would contemplate with
equanimity. Why should the wrongdoer be obliged to pay damages to the parents, but
not to the person actually afflicted? But on the other hand, the law does from time to
time impose arbitrary limits and boundaries. One of the purposes of the law of tort is to
set standards, and in that respect, it operates as a deterrent to careless conduct. On the
other hand however, there are some departures from proper standards which do not
attract damages, for example, by reason of indeterminacy of a kind spoken of in cases of
claims for economic loss325. On the basis of the facts stated, there is every reason to
expect that a person in the position of the respondent will however be appropriately very
severely disciplined by the relevant disciplinary body. The consequence of failing to
allow this appellant to recover, is that a person such as she, catastrophically disabled,
will recover nothing, whilst, if after the moment of conception, she had suffered
negligently caused injury, even of a much lesser kind, she may be able to recover. A
case of this kind is so different from any other, and goes so much to the heart of diverse
theological and philosophical opinion, that the courts should leave it to the legislators to
state the law to govern it.
205 What I have just said is not a comprehensive statement of all of the
policy considerations which have troubled the minds of those who have already had to
323 (2003) 215 CLR 1.
324 It must be emphasized that I raise this as a practical concern. Of course there are
"the tests of reasonable foreseeability and reasonable care" (reasons of Kirby J at [114])
which may serve to protect a doctor in a legal dispute. But decisions of this Court can
affect people's lives and decisions before legal proceedings are initiated or even
contemplated. And even if they are contemplated, those legal tests have on occasion
been interpreted to produce what Professor Atiyah has described as a "damages lottery"
(Atiyah, The Damages Lottery, (1997)), and it seems to me that many doctors might not
find them particularly reassuring (consider, eg, Rogers v Whitaker (1992) 175 CLR
479).
325 Perre v Apand Pty Ltd (1999) 198 CLR 180.
Callinan J
59.
deal with this type of problem. I do not however need to make a comprehensive review
of those considerations, any more than I need to undertake another review of all of the
authorities, an exercise which has been very helpfully performed in the courts below. I
do not need to do these because I would decide the case neither on policy grounds, the
common law or any adaptation of it, the law of other jurisdictions, nor on the basis of
other cases in Australian jurisdictions so far decided, none of which are sufficiently
similar to this case to assist in resolving it, but on logic. The appellant's case propounds
these propositions. "Had my mother been properly advised, she would have caused me
to be aborted. I would never therefore have come into existence as a formed human
being. I am, in consequence, entitled to damages upon the basis that I should never
have been born." It is not logically possible for any person to be heard to say "I should
not be here at all", because a non-being can say nothing at all. If this conclusion is
unacceptable to some, or many, it is for the legislature, and the legislature alone, to say
so, and in terms which would enable some principled basis of assessment of damages.
It has not.
60.
61.
208 CRENNAN J. This appeal and two appeals in Waller v James and Waller v
Hoolahan326 ("the Waller cases") were heard consecutively and much of what is said in
the reasons in this case applies also to the Waller cases. The submissions in the Waller
cases bore on the issues in this case and they have also been taken into account. By
majority (Spigelman CJ and Ipp JA, Mason P dissenting) the New South Wales Court of
Appeal327 dismissed an appeal brought by the plaintiff Alexia Harriton (the appellant in
this Court) against a judgment in the Supreme Court of New South Wales (Studdert J)
dismissing with costs a claim for damages against Dr Paul Richard Stephens ("Dr P R
Stephens"), a general medical practitioner.
209 Alexia Harriton was born on 19 March 1981 with severe congenital
disabilities caused by the rubella virus with which her mother, Mrs Harriton, had been
infected in the first trimester of her pregnancy. Mrs Harriton had an acute illness with a
fever and rash in early August 1980. On 13 August 1980 she consulted Dr Max
Stephens, father of the respondent in this Court, Dr P R Stephens, and told him she was
concerned that she might be pregnant and that her recent illness might be rubella. She
told him she was aware that rubella in early pregnancy could produce congenital
abnormalities in an unborn child. Dr Max Stephens advised Mrs Harriton to have a
blood test to determine whether she was pregnant and whether she was suffering from
rubella. On 21 August 1980 Macquarie Pathology Services reported:
"Rubella 30
If no recent contact or rubella-like rash, further contact with this virus is unlikely
to produce congenital abnormalities.
Preg test positive."
210 On 22 August 1980 Mrs Harriton consulted Dr P R Stephens and
informed him that she had had a fever and a rash and was concerned that her recent
illness was rubella. Dr P R Stephens then had the Macquarie Pathology Services report.
He informed Mrs Harriton that she was pregnant and assured her that her illness was not
rubella.
211 Mrs Harriton had had rubella and Alexia Harriton's congenital disabilities
as a result of rubella include blindness, deafness, mental retardation and spasticity. She
is unable to care for herself and requires continuous care which she will need for the rest
of her life. Her claims for damages include special damages for past and future medical
and care costs and general damages for pain and suffering. Additionally, a claim for
loss of income based upon the average weekly wage and the average life expectancy
was raised in submissions. Any claim which Mrs Harriton has against Dr P R Stephens
is statute barred.
212 The parties prepared an agreed statement of facts for the purposes only of
a separate determination under the provisions of Pt 31 of the Supreme Court Rules 1970
(NSW) of the following questions:
326 [2006] HCA 16.
327 Harriton (by her tutor Harriton) v Stephens (2004) 59 NSWLR 694.
Crennan J
62.
213 Studdert J answered "No" to the first question, so the second question did
not arise. Those answers were premised on findings that Dr P R Stephens's duty to the
appellant was a duty not to injure her and she was not born disabled because of any
breach of that duty by him. Further, Studdert J found that the impossibility of
determining damage suffered by the appellant and the impossibility of assessing
compensatory damages supported rejection of the claim. The trial judge also noted what
he called weighty considerations of public policy against recognising a "wrongful life"
claim. Whilst it is not relevant to the present appeal, the appellant also failed in a claim
as a beneficiary of any trust or contract between Mrs Harriton and Dr P R Stephens.
214 The appellant appealed to the Court of Appeal contending that Studdert J
erred in law in not concluding that Dr P R Stephens's duty to the appellant extended to
providing to her mother all information about her medical condition, in failing to
recognise that being born disabled was legally cognisable damage and in failing to
recognise the appellant's claims as a matter of consistent legal policy when (if not
statute barred) a claim is available to the mother to recover the costs of the child's care
arising out of the same events328. It was also contended that his Honour erred in
regarding the difficulty of assessing damages as a bar to such a claim.
The issues
215 The main issue is whether the appellant/child who was born disabled has
a cause of action in negligence against the respondent/doctor on the agreed facts which
stated that the doctor failed to advise the child's mother during her pregnancy of
circumstances which would have led the child's mother to obtain a lawful termination of
that pregnancy. If such a cause of action exists, the next issue is whether the heads of
damages are limited to, or different from, damages generally available in claims for
personal injury.
216 Consideration of the nature of the damage in this case, and the principles
relevant to assessment of damages, leads to the result that the appellant has no cause of
action against Dr P R Stephens.
63.
The question of what, if any, categories of compensatory damages are available only
arises when actual damage or injury, together with breach of a duty of care and
causation, are established.
218 Because of the agreed statement of facts, questions of breach of any duty
of care (if one were established) and of any causal connection between the breach of
duty and the claimed damage, characterised as "life with disabilities", received less
attention in argument than questions of whether the damage as alleged was legally
cognisable, whether a duty of care as alleged existed, and whether, if calculating
damages according to compensatory principles was virtually impossible, the damage
could be treated as actionable. The phrase "legally cognisable" is used here to mean
"capable of being known or recognised for the purposes of judicial proceedings". These
latter issues differed from the question which was considered in Cattanach v
Melchior330.
219 The agreed statement of facts relevantly included the following facts:
"16. It would have been prudent medical practice in 1980 to advise a pregnant
woman who had rubella in the first trimester of her pregnancy that there
was a very high risk that the unborn child would suffer grievous injury as
a result of the rubella infection.
17. In these circumstances, prudent medical practice would have been to
counsel a woman that the only way to prevent a child from suffering
these injuries throughout its life would be to terminate the pregnancy.
18. Had the rubella been diagnosed, [Mrs Harriton] would have exercised
her lawful right to terminate the pregnancy.
...
22. The plaintiff did not become infected in utero with rubella by reason of
any negligence on the part of the defendant."
220 The specific duty of care postulated in respect of Alexia Harriton was a
duty upon Dr P R Stephens to diagnose rubella and then advise Mrs Harriton that the
only way to prevent a very high risk of bearing a child with grievous injury caused by
rubella would be to terminate the pregnancy. The agreed facts do not cover whether it
was known in Australia in 1980 that the effects of rubella may be variable 331 or whether
64.
treatment to ameliorate the effects of rubella was available 332. It is only because
Mrs Harriton did not have an abortion or miscarry but continued the pregnancy to term
that Dr P R Stephens could be liable for his failures to diagnose rubella and advise of
rubella's consequences as identified in the agreed statement of facts.
221 The issue here has arisen elsewhere in both common law and civil law
jurisdictions because of advances in reproductive medicine including diagnostic testing
during pregnancy. Typically claims have been advanced that a medical practitioner was
negligent in failing to provide sufficient information to a mother concerning the risk of
foetal abnormality and as a result of such negligence the mother's pregnancy was not
terminated and the child was born into a life with disabilities.
65.
223 While precise facts have differed, a comparative survey reveals that
many courts have recognised the difficulty and novelty of the question of whether life
with congenital defects can be recognised as damage, at the suit of a disabled person
who would not exist in the absence of the alleged negligence 340. Speaking generally,
such claims have been resisted in common law jurisdictions. It appears that on the very
few occasions when such claims have been allowed the results have not always been
uncontroversial and legislatures have reacted to such decisions, or acted proleptically, to
restrict or prohibit such suits341.
224 A right of action and a duty of care are inseparable 342. In a case like this,
the existence and extent of a duty of care can usefully be considered by reference to the
nature of the damage suffered343 because a cardinal principle of imposing liability for
337 For example, in Australia, Waller v James [2006] HCA 16; in Canada, Jones
(Guardian ad litem of) v Rostvig (1999) 44 CCLT (2d) 313; in Singapore, JU v See Tho
Kai Yin [2005] 4 SLR 96; in the United States of America, Curlender v Bio-Science
Laboratories 165 Cal Rptr 477 (1980); Turpin v Sortini 182 Cal Rptr 337 (1982);
Nelson v Krusen 678 SW 2d 918 (1984); Bruggeman v Schimke 718 P 2d 635 (1986);
Lininger v Eisenbaum 764 P 2d 1202 (1988); Viccaro v Milunsky 551 NE 2d 8 (1990);
Kush v Lloyd 616 So 2d 415 (1992); Schloss v The Miriam Hospital unreported, Rhode
Island Superior Court, 11 January 1999; Moscatello v University of Medicine and
Dentistry of New Jersey 776 A 2d 874 (2001); Johnson v Superior Court of Los Angeles
County 124 Cal Rptr 2d 650 (2002); Paretta v Medical Offices for Human Reproduction
760 NYS 2d 639 (2003); in Israel, Zeitsov v Katz (1986) 40(2) PD 85. The claim was
denied in all cases except Turpin v Sortini, Curlender v Bio- Science Laboratories and
Zeitsov v Katz.
338 Cattanach v Melchior (2003) 215 CLR 1.
339 Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266.
340 For example, McKay v Essex Area Health Authority [1982] QB 1166 at 1177, 1186
and 1193.
341 Roper, "An Open Question in Utah's Open Courts Jurisprudence: The Utah
Wrongful Life Act and Wood v University of Utah Medical Center", (2004) Brigham
Young University Law Review 893 at 894. See Hondius, "The Kelly Case
Compensation for undue damage for wrongful treatment", in Gevers, Hondius and
Hubben (eds), Health Law, Human Rights and the Biomedicine Convention, (2005) 105
at 112.
342 Smith v Jenkins (1970) 119 CLR 397 at 418 per Windeyer J.
343 Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J;
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 290 [104]
per Hayne J. See also Cole v South Tweed Heads Rugby League Football Club Ltd
(2004) 217 CLR 469 at 472 [1] per Gleeson CJ; cf Vairy v Wyong Shire Council (2005)
80 ALJR 1 at 16 [62] per Gummow J; 221 ALR 711 at 727.
Crennan J
66.
negligence in novel circumstances is that the party complained of should owe to the
party complaining a duty to take care, which the law can recognise as a matter of
principle344, and that the party complaining should be able to prove that actual loss or
damage has been suffered as a consequence of a breach of that duty 345. Proving that
actual loss or damage has been suffered requires proof of interference with a right or
interest recognised as capable of protection by law346.
225 Decisions from overseas jurisdictions where the same issue and identical
questions have arisen may assist, despite not being binding, because determining, as a
matter of law, whether a duty of care exists or not falls to be considered at a "higher
level of abstraction"347 than, for example, factual questions of breach, turning on local
normative standards, and causation.
226 In the United Kingdom, the English Court of Appeal in McKay v Essex
Area Health Authority348 unanimously rejected such a claim by a child affected by
rubella as disclosing no reasonable cause of action against her local health authority and
her mother's doctor. The reasoning deals with objections to such a cause of action which
have been raised in numerous courts before and since. In finding neither defendant was
under any duty to the child to give the child's mother an opportunity to terminate the
child's life, Stephenson LJ said349:
"That duty may be owed to the mother, but it cannot be owed to the child.
To impose such a duty towards the child would, in my opinion, make a
further inroad on the sanctity of human life which would be contrary to public
policy. It would mean regarding the life of a handicapped child as not only less
valuable than the life of a normal child, but so much less valuable that it was not
worth preserving, and it would even mean that a doctor would be obliged to pay
damages to a child infected with rubella before birth who was in fact born with
some mercifully trivial abnormality."
67.
"To my mind, the most compelling reason to reject this cause of action is
the intolerable and insoluble problem it would create in the assessment of
damage."
"Such a cause of action [ie a claim for 'wrongful life'], if it existed, would
place an almost intolerable burden on medical advisers in their socially and
morally exacting role. The danger that doctors would be under subconscious
pressure to advise abortions in doubtful cases through fear of an action for
damages is, we think, a real one."
Similar policy considerations were noted in the Report of the Canadian Royal
Commission on New Reproductive Technologies entitled Proceed with Care, (1993),
vol 2 at 957-959.
354 [1982] QB 1166 at 1189.
355 [1982] QB 1166 at 1192.
356 227 A 2d 689 (1967).
357 [1982] QB 1166 at 1182.
358 227 A 2d 689 at 692 (1967) per Proctor J.
359 227 A 2d 689 at 692 (1967) per Proctor J.
Crennan J
68.
232 Many other American states have rejected "wrongful life" claims both
before and after Roe v Wade368 for a variety of reasons, but two recur. First, such a
claim requires an impossible comparison between a life with disability and
non-existence such that the damage claimed, that is a life with disabilities, is not
cognisable to the law and, secondly, damages in respect of that damage are not
ascertainable. These objections have led a number of courts, since Gleitman v
Cosgrove369, to continue to find that life is not actionable damage or compensable injury
at the suit of a disabled child370. The trial judge has conveniently dealt with some of the
American cases371.
233 It appears that numerous state legislatures in the United States since Roe
v Wade372 have prohibited a person from maintaining a cause of action or receiving an
award of damages based on a claim that, but for the negligent conduct of another, the
foetus would have been aborted373. Lesser legislative restrictions include excluding
360 227 A 2d 689 at 693 (1967) per Proctor J.
361 410 US 113 (1973).
362 410 US 113 (1973).
363 Turpin v Sortini 182 Cal Rptr 337 (1982), overruling in part the earlier decision of
the Court of Appeal in Curlender v Bio-Science Laboratories 165 Cal Rptr 477 (1980)
which is the only American court to have awarded general damages; Harbeson v
Parke- Davis Inc 656 P 2d 483 (1983); Procanik v Cillo 478 A 2d 755 (1984).
364 Quinn v Blau 21 Conn L Rptr 126 (1997).
365 [1982] QB 1166 at 1182.
366 227 A 2d 689 (1967).
367 "On Tort Liability for 'Wrongful Life'", (1966) 1 Israel Law Review 513.
368 410 US 113 (1973).
369 227 A 2d 689 (1967).
370 See Becker v Schwartz 386 NE 2d 807 (1978) and Kassama v Magat 792 A 2d
1102 (2002) each of which contains a relevant summary of case law.
371 Harriton v Stephens [2002] NSWSC 461 at [12], [35]-[49]; see also Edwards v
Blomeley [2002] NSWSC 460 at [33]-[43] and Pollard, "Wrongful Analysis in Wrongful
Life Jurisprudence", (2004) 55 Alabama Law Review 327.
372 410 US 113 (1973).
373 Roper, "An Open Question in Utah's Open Courts Jurisprudence: The Utah
Wrongful Life Act and Wood v University of Utah Medical Center", (2004) Brigham
Crennan J
69.
parents from the class of persons against whom such a claim might be made and
restricting damages to special damages associated with disease, defect or handicap374.
234 In Canada, such claims have not been recognised 375. The Court of
Appeal in Manitoba has rejected a wrongful life claim on the grounds of public policy
and because of the impossibility of assessing damages 376, although the Saskatchewan
Court of Appeal has declined to uphold the summary dismissal of such a claim377.
235 A wrongful life claim has been allowed by the Supreme Court of
Israel378. It is reported that two judges in a majority of four (of a bench of five judges)
deal with the difficulty of comparing life with disability with non-existence, by
employing for the purposes of assessing damages a legal fiction as a comparator,
namely "life as a healthy child"379.
237
70.
238 A wrongful life claim which appears to have been based on contract has
been allowed in France382. A claim has been upheld under the Dutch Civil Code in the
Netherlands383.
239 In the instant case Spigelman CJ found the proposed duty of care should
not be accepted because it did not reflect values generally or even widely held in the
community, it involved a "highly contestable" notion that Alexia Harriton would have
been better off not being born, the relationship between doctor and child (formerly the
foetus) was mediated through the parents and the damage complained of was not
"legally cognisable damage" as it involved impossible comparison between life with
disability and non-existence384. He agreed with Ipp JA's analysis of the difficulties of
applying the compensatory principle to the appellant's claim.
241 Mason P, in dissent, found the disabilities were "in one sense caused by
the negligence of the [doctor]"386 and that it would be inconsistent387 to disallow
recovery for a wrongful life claim given the result in Cattanach v Melchior388. He
considered that compensation for a wrongful life could be allowed on the application of
the ordinary principles of tort. He regarded the essence of the appellant's complaint as
her "present and future suffering and the needs it creates"389. The steps in his reasoning
were first to recognise that wrongful life involves physical damage being the disability,
which is reasonably foreseeable390, reasonably preventable391 and caused by the doctor's
conduct of omitting to give advice and treatment 392. It appears the treatment to which
Mason P was referring was termination of the pregnancy as no other treatment was
under consideration in the case. The appellant adopts the reasoning and conclusions of
Mason P in the Court of Appeal.
382 Perruche Cass. ass. pln., Nov. 17, 2000, noted in 2000 Bull. Civ. No. 9, 15.
383 See Leids Universitair Medisch Centrum v Kelly Molenaar, Hoge Raad 18 maart
2005, RvdW 2005, 42 as discussed in Hondius, "The Kelly Case Compensation for
undue damage for wrongful treatment", in Gevers, Hondius and Hubben (eds), Health
Law, Human Rights and the Biomedicine Convention, (2005) 105.
384 (2004) 59 NSWLR 694 at 701 [24], 705 [54].
385 (2004) 59 NSWLR 694 at 737 [266], 739 [280].
386 (2004) 59 NSWLR 694 at 715 [116].
387 (2004) 59 NSWLR 694 at 718 [136]-[137].
388 (2003) 215 CLR 1.
389 (2004) 59 NSWLR 694 at 721 [155].
390 (2004) 59 NSWLR 694 at 713-714 [107]-[112].
391 (2004) 59 NSWLR 694 at 714-716 [114]-[121].
392 (2004) 59 NSWLR 694 at 715 [116], 716 [121]-[123].
Crennan J
71.
Duty of care
244 It was not Dr P R Stephens's fault that Alexia Harriton was injured by the
rubella infection of her mother. Once she had been affected by the rubella infection of
her mother it was not possible for her to enjoy a life free from disability. The agreed
facts assert that Dr P R Stephens should have treated Mrs Harriton differently, in which
case rubella would have been diagnosed. However, on the agreed facts, it was not
possible for Dr P R Stephens to prevent the appellant's disabilities. Dr P R Stephens
would have discharged his duty by diagnosing the rubella and advising Mrs Harriton
about her circumstances, enabling her to decide whether to terminate her pregnancy; he
could not require or compel Mrs Harriton to have an abortion.
72.
with disabilities", as the case was put by the appellant in this Court. The former is
immediately caused by rubella, whereas the latter is said to be immediately, or
materially, or effectively caused by the doctor's failure to advise the mother such that
her response would have been to obtain a lawful abortion. In the Court of Appeal,
Spigelman CJ was of the opinion that it is not "possible to avoid or obfuscate the fact
that an action by a disabled child, as distinct from an action by the parents, involves an
assertion by the child that it would be preferable if she or he had not been born" 396. This
raises the difficult question of whether the common law could or should recognise a
right of a foetus to be aborted, or an interest of a foetus in its own termination, which is
distinct from the recognised right of a foetus not to be physically injured whilst en
ventre sa mre, whether by a positive act397 or by an omission398.
73.
Damage
74.
duty. Inherent in that principle is the requirement that a plaintiff is left worse off as a
result of the negligence complained about, which can be established by the comparison
of a plaintiff's damage or loss caused by the negligent conduct, with the plaintiff's
circumstances absent the negligent conduct. In the Court of Appeal, Spigelman CJ
recognised that in cases of this kind, to find damage which gives rise to a right to
compensation it must be established that non-existence is preferable to life with
disabilities409. A right capable of being protected by the law of tort, to not exist (or to be
aborted), must necessarily require the comparison which Spigelman CJ identified. The
appellant's counsel conceded correctly that it is the usual principles of tort liability
which compel the appellant to contest her own existence.
252 A comparison between a life with disabilities and non-existence, for the
purposes of proving actual damage and having a trier of fact apprehend the nature of the
damage caused, is impossible. Judges in a number of cases have recognised the
impossibility of the comparison and in doing so references have been made to
philosophers and theologians as persons better schooled than courts in apprehending the
ideas of non-being, nothingness and the afterlife410.
75.
has been breached, and which cannot be apprehended by persons said to be subject to
the duty, and which cannot be apprehended or evaluated by a court (or jury).
255 It was submitted for the appellant that if the majority's rejection of a
cause of action in the Court of Appeal on this basis is a legal principle, it is a flawed
legal principle or a legal principle wrongly applied because the law has shown itself
regularly as capable of balancing a present life of suffering against a therapeutically
accelerated death as evidenced in a number of cases in the parens patriae jurisdiction411.
It was next contended that the "impossible comparison" argument was either an aspect,
or a corollary, of the "sanctity of life" argument, which did not preclude recovery in
Cattanach v Melchior412.
76.
claimed was capable of being evaluated by a court. Likewise in Watt v Rama418 there
was evidence of damage capable of being evaluated by the Court and the question was
whether established principle could encompass that damage. In the present case, the
damage claimed cannot be the subject of evidence or forensic analysis. This highlights
the need to distinguish between considerations going to the existence of a duty of care
and considerations going to breach, a distinction referred to by Gummow J in Vairy v
Wyong Shire Council419. The Court in Cattanach v Melchior420 was considering whether
the law would require a doctor defendant to bear certain costs. That question was
resolved by reference to "general principles, based upon legal values"421, and legal
policy considerations, encompassing the corporate welfare of the community, coherence
and fairness422, a common law technique for dealing with novel claims 423. Considering
the question here by reference to that technique exposes many formidable obstacles to
recognition of the appellant's claim. Another problem is the difficulty of assessing
damages, in respect of the damage, a topic to be discussed later in these reasons. Not
every claim for damage is actionable. The principles of negligence are designed to set
boundaries in respect of liability. The analytical tools therefor, such as duty of care,
causation, breach of duty, foreseeability and remoteness, all depend for their
employment on damage capable of being apprehended and evaluated.
259 In the eyes of the common law of Australia all human beings are
valuable in, and to, our community, irrespective of any disability or perceived
imperfection. The premises upon which cases are conducted in the parens patriae
jurisdiction, which have already been mentioned, do not contradict that proposition.
While Alexia Harriton's disabilities are described in the agreed statement of facts, her
disabilities are only one dimension of her humanity. It involves no denial of the
particular pain and suffering of those with disabilities to note that while alive, between
418 [1972] VR 353.
419 (2005) 80 ALJR 1 at 17-18 [70]-[73]; 221 ALR 711 at 730-731.
420 (2003) 215 CLR 1.
421 (2003) 215 CLR 1 at 8 [2] per Gleeson CJ.
422 (2003) 215 CLR 1 at 32-35 [70]-[76] per McHugh and Gummow JJ, 52-53 [136]-
[137] per Kirby J, 108-109 [301] per Callinan J.
423 Sullivan v Moody (2001) 207 CLR 562 at 579 [49], 580 [53].
424 (2003) 215 CLR 1 at 36 [79] per McHugh and Gummow JJ, 54-60 [141]-[153] per
Kirby J; see also at 72-74 [195]-[198] per Hayne J.
425 (2003) 215 CLR 1 at 35-36 [77]-[78] per McHugh and Gummow JJ, 55-56 [142]-
[145] per Kirby J, 108-109 [301] per Callinan J.
Crennan J
77.
birth and death, human beings share biological needs, social needs and intellectual
needs and every human life, within its circumstances and limitations, is characterised by
an enigmatic and ever-changing mixture of pain and pleasure related to such needs.
260 The Court knows very little about Alexia Harriton but it is possible for
the Court to infer that Alexia Harriton is no different in this respect from fellow human
beings, despite the fact that her grave disabilities include mental retardation. A seriously
disabled person can find life rewarding426 and it was not contended to the contrary on
behalf of the appellant. It was not contended as a fact that Alexia Harriton cannot
experience pleasure427. The Court was informed Alexia Harriton commanded the
devotion of her parents.
261 Arguments giving primacy to the value of Alexia Harriton's life, which
are additional to and independent of the arguments based on the forensic impossibility
of proving and apprehending the nature of the damage claimed, highlight the lack of
certainty about the class of persons to whom the proposed duty is owed. Is it only owed
to persons whose disability is so severe they could be said to constitute a group for
whom life is not worth living? Other categories of established negligence, in which a
duty of care exists, do not discriminate between those damaged by a breach of the duty
on the basis of the severity or otherwise of the damage.
78.
event, if he or she had never been born. All human lives are valued equally by the law
when imposing sentences on those convicted of wrongfully depriving another of life.
"A person who is physically injured by the negligence of another may suffer
damage in a number of ways. As has long been established, the damages to be
awarded to the victim are 'that sum of money which will put the party who has
been injured, or who has suffered, in the same position as he would have been in
if he had not sustained the wrong for which he is now getting his compensation
or reparation'."
265 Many examples demonstrating the principle were referred to in the Court
of Appeal432. Whilst Mason P did not consider that the impossibility of a comparison
between life with disability and non-existence should bar the claim, he recognised the
damages issues were "quite profound"433. It can be accepted that mere difficulty in the
calculation of damages is not a bar to recognising a cause of action, especially when
damages conventionally awarded in personal injuries can assist 434. However, it is not
possible on the facts of this case to apply the compensatory principle. Alexia Harriton's
condition before the alleged breach of duty of care by Dr P R Stephens was that she was
a foetus affected by rubella. The comparison which is called for on the agreed facts is a
comparison between her life with disabilities and the state of non-existence in which she
would have been, absent the doctor's alleged carelessness in failing to advise her
mother, which advice would have led her mother to obtain a lawful abortion. It is not
that the comparison is difficult or problematic. It is impossible, for the reasons already
explained.
430 (1999) 197 CLR 138 at 142-143 [6] per Gleeson CJ, Gummow, Kirby and Hayne JJ
(footnote omitted).
431 Skelton v Collins (1966) 115 CLR 94 at 128 per Windeyer J.
432 (2004) 59 NSWLR 694 at 698-699 [3]-[8] per Spigelman CJ, 728-730 [215]-[230]
per Ipp JA.
433 (2004) 59 NSWLR 694 at 723 [169]; see also Edwards v Blomeley [2002] NSWSC
460 at [33]-[43] per Studdert J.
434 Rees v Darlington Memorial Hospital NHS Trust [2003] QB 20; see also Carson v
John Fairfax & Sons Ltd (1993) 178 CLR 44.
Crennan J
79.
disabilities" (the comparator used in Zeitsov v Katz435 and suggested by the appellant in
the Waller cases) depends on a legal fiction. So too does a comparison of her "life with
disabilities" with the life of "someone otherwise comparable with her in all respects
except for her suffering and her needs", the "fictional healthy person"436. In the United
States, courts of the three states which have recognised recovery of special damages for
a child/plaintiff's disabilities (California, New Jersey and Washington) have, on
occasion, frankly acknowledged that the inherent problems arising out of the
impossibility of comparing a life with disabilities with non-existence and the related
problem of assessing damages, have been put to one side for reasons of social or
economic policy. For example, in Curlender437, the only case in the United States in
which general damages were awarded, the Court said438:
"The reality of the 'wrongful-life' concept is that such plaintiff both exists and
suffers, due to the negligence of others. It is neither necessary nor just to retreat
into meditation on the mysteries of life. We need not be concerned with the fact
that had defendants not been negligent, the plaintiff might not have come into
existence at all."
268 After Turpin441, in Procanik v Cillo (allowing special damages) the Court
442
said :
269 The common law is hostile to the creation of new legal fictions 443 and the
use of legal fictions concealing unexpressed considerations of social policy has been
80.
deprecated444. Employment of either of the legal fictions proposed would have the effect
of excepting the appellant from the need to come within well-settled and well-
understood principles of general application to the tort of negligence. Also, the heads of
damages sought to be recovered reveal the conceptual difficulty of assessing damages in
respect of the appellant's claim. The appellant relies on conventional awards of damages
in personal injury. However, there cannot have been any damage to the appellant's
earning capacity and none was claimed. In respect of the appellant's special pain and
disabilities caused by rubella, it was suggested that a comparison could be made in the
light of the ordinary range of usual experience of pain and disabilities. As to medical
and care needs, on the actual comparator, nothing is recoverable.
270 A life without special pain and disabilities was never possible for the
appellant, even before any failures by Dr P R Stephens. Approaching the task of
assessing general and special damages, as suggested, has the effect of making
Dr P R Stephens liable for the disabilities, which he did not cause. The manifold
difficulties in assessing damages in respect of the claim have been discussed
conveniently and comprehensively by Ipp JA 445. The analytical tool for measuring
damages, the compensatory principle, depends for its utility and execution on proof of
the actual damage suffered.
Corrective justice
"The question as to what is fair, and just and reasonable is capable of being
misunderstood as an invitation to formulate policy rather than to search for
principle. The concept of policy, in this context, is often ill-defined. There are
policies at work in the law which can be identified and applied to novel
problems, but the law of tort develops by reference to principles, which must be
444 Scott v Davis (2000) 204 CLR 333 at 421-422 [265] per Gummow J.
445 (2004) 59 NSWLR 694 at 735-748 [254]-[350].
446[1990] 2 AC 605 at 617-618.
447 (2001) 207 CLR 562 at 579 [49] per Gleeson CJ, Gaudron, McHugh, Hayne and
Callinan JJ.
Crennan J
81.
"It is sometimes said that compensation for losses is the primary function
of tort law and the primary factor influencing its development. It is perhaps
more accurate to describe the primary function as one of determining when
compensation is to be required. Courts leave a loss where it is unless they find
good reason to shift it. A recognized need for compensation is, however, a
powerful factor influencing tort law. Even though, like other factors, it is not
alone decisive, it nevertheless lends weight and cogency to an argument for
liability that is supported also by an array of other factors."
274 Aristotelian notions of "corrective justice"449, requiring somebody who
has harmed another without justification to indemnify that other, and "distributive
justice"450, requiring calculation of benefits and losses and burdens in society, were
referred to by Lord Steyn in McFarlane v Tayside Health Board451, for the purpose of
explicating the dynamic interrelationship between differing values, which values need
to be considered when faced with a novel claim in negligence. The Aristotelian
backdrop to the notions of "corrective justice" and "distributive justice" was a
community whose common good included laws, both reflecting the community's
common values and enabling individual members to achieve reasonable objectives452.
However, there remains a problem in Aristotle's analysis, relevant to this submission. In
emphasising "corrective justice", even as added to by his consideration of "distributive
justice", Aristotle left unexplored the dependence of "correction" on the prior
establishment of principles. As Finnis 453 puts it, "'[c]orrection' and 'restitution' are
notions parasitic on some prior determination of what is to count as a crime, a tort, a
binding agreement, etc". The values of fairness, coherence, and the corporate welfare of
the community or community expectations as referred to in Cattanach v Melchior454, are
not considered singly, in isolation from each other or from relevant matters, particularly
the doctrines and well-established principles determining what constitutes negligence.
275 Putting aside doubt as to whether a need for "corrective justice" arises
when a person is affected by rubella, for which no-one is responsible, a need for
"corrective justice" alone could never be determinative of a novel claim in negligence.
Moreover, to the extent that it may be a factor to be taken into account when
considering a novel claim, a need for "corrective justice" is not a persuasive factor here.
448 5th ed (1984) at 20 (footnote omitted).
449 Nicomachean Ethics V,2:1131a1; 3:1131b25; 4:1132b25.
450 Nicomachean Ethics V,3:1131b28; 3:1132b24, 32.
451 [2000] 2 AC 59 at 82.
452 Nicomachean Ethics V,1:1129a27ff; 1129b15.
453 Finnis, Natural Law and Natural Rights, (1980) at 178-179.
454 (2003) 215 CLR 1 at 29 [60], 30-31 [65], 32-33 [70], 33-35 [73]-[77] per McHugh
and Gummow JJ, 55-56 [142]-[145] per Kirby J, 81-89 [224]-[242] per Hayne J, 108-
109 [301] per Callinan J.
Crennan J
82.
The claim here is to extend a boundary in respect of liability for compensation when the
liability is precluded by "an array of other factors"455.
Conclusion
276 In the present case the damage claimed is not amenable to being
determined by a court by the application of legal method. A duty of care cannot be
clearly stated in circumstances where the appellant can never prove (and the trier of fact
can never apprehend) the actual damage claimed, the essential ingredient in the tort of
negligence. The appellant cannot come within the compensatory principle for
measuring damages without some awkward, unconvincing and unworkable legal fiction.
To except the appellant from complying with well-established and well-known
principles, integral to the body of doctrine concerning negligence applicable to all
plaintiffs and defendants in actions in all other categories of negligence, would occasion
serious incoherence in that body of doctrine and would ignore the limitations of legal
method in respect of the appellant's claim.
278 The decision of the majority of the Court of Appeal should be upheld.
The appeal should be dismissed with costs.